IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140227

Docket: 1139524

Registry:
Prince George

Between:

Joanne Wendy
Boyar, Executor of the Estate of William Michael Boyar,

also known as
William Boyar also known as

William M. Boyar
also known as Bill Boyar, Deceased

Plaintiff

And

Joyce Muriel
Boyar, Jill Patricia Kemmerling,

Richard Allan
Foulston, Kathleen Chandler

Defendants

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
William Boyar (“Mr. Boyar” or “the deceased”) died on January 17, 2011. 
The plaintiff, Joanne Boyar (“Ms. Boyar”) is Mr. Boyar’s sister.  Mr. Boyar
named Joanne Boyar as executor and sole beneficiary in a Will signed by Mr.
Boyar on August 7, 2010.   Ms. Boyar was prevented from obtaining probate of
the Will by a series of caveats filed by the defendant Richard Foulston and by
the defendant Kathleen Chandler.  Ms. Boyar is asking the Court to find that
the August 7, 2010 Will is valid and in force and she seeks an order for
probate.

[2]            
The Defendant, Kathleen Chandler, (“Ms. Chandler”) alleges that Mr.
Boyar lacked testamentary capacity at the time he made the Will; or was
subjected to undue influence by Ms. Boyar.

[3]            
In her Counterclaim, Ms. Chandler also alleges that she was Mr. Boyar’s
“spouse” for the purposes of the Estate Administration Act, Wills
Variation Act, and the Family Relations Act (since repealed).   Ms.
Chandler asks that Letters of Administration be issued to her as the surviving
“spouse” of the deceased.  She also seeks an accounting for any property or
funds disposed of by Ms. Boyar and repayment to the estate of any sums found
owing.  She seeks variation of the Will, if the Will is found to be valid, to
provide for her support and maintenance.  In the further alternative, she seeks
an award based on quantum meruit or unjust enrichment.  Ms. Chandler claims
that Mr. Boyar was unjustly enriched by assistance she provided to him during
his lifetime; in particular, assistance she provided after he was seriously
injured in a motorcycle accident, and while he was receiving treatment for rectal
cancer.

[4]            
The Defendant, Richard Foulston, (“Mr. Foulston”) was a friend of the
deceased.  Mr. Foulston is a lawyer.  During most of the trial he was
self-represented but retained counsel – Mr. Aartsen – to conduct his direct
examination and to make closing submissions.

[5]            
Like Ms. Chandler, Mr. Foulston contests the validity of the Will.  He
alleges that Mr. Boyar lacked testamentary capacity; that Ms. Boyar exercised
undue influence over Mr. Boyar; or that Mr. Boyar was under duress at the time
he executed the Will.

[6]            
In his Counterclaim, Mr. Foulston alleges a verbal contract pursuant to
which Mr. Boyar agreed to pay Mr. Foulston for “… care and services”.  Mr.
Foulston alleges that he provided more than 500 hours of legal services to Mr.
Boyar related to a claim Mr. Boyar was pursuing for damages for personal
injuries resulting from a motorcycle/motor vehicle collision in 2005 and he
seeks to recover payment for these services.

[7]            
In the alternative, Mr. Foulston claims on the basis of quantum meruit,
constructive trust, and unjust enrichment.  Mr. Foulston is advancing a
specific claim to two assets of the estate – a motor boat with trailer; and a
motorcycle.  The Counterclaim does not specify a legal basis for Mr. Foulston’s
claim to these assets.

[8]            
The Defendant, Jill Patricia Kemmerling, (“Ms. Kemmerling”) is the
sister of the deceased and of Ms. Boyar.  She lives in California and is
self-employed as a personal fitness trainer.  Ms. Kemmerling filed a Response
in these proceedings, supporting the Grant of Probate to Ms. Boyar, but did not
attend trial or otherwise participate in the proceedings.

[9]            
Joyce Muriel Boyar is the mother of Ms. Boyar, Ms. Kemmerling and the
deceased.  She survived Mr. Boyar but died after the commencement of these
proceedings without having filed a Response.  Her estate took no part in the
proceedings.

CREDIBILITY OF THE WITNESSES

[10]        
This is a case in which it is necessary to comment on my assessment of
the credibility of Ms. Boyar, Mr. Foulston and Ms. Chandler, as their testimony
diverged sharply on several matters that must be resolved in order to dispose
of the competing claims in this lawsuit.

[11]        
In general, I found Ms. Boyar to be a credible witness.  Her testimony
was generally internally consistent and any inconsistencies in her testimony
were minor and likely the result of the passage of time.  Her testimony was
also consistent with the probabilities of the situation, and with the
documentary evidence.  Mr. Foulston cross-examined Ms. Boyar about some
wrongful dismissal litigation in Toronto in which the presiding judge made some
negative comments about Ms. Boyar, but she impressed me favorably as a witness
at this trial.

[12]        
Because Mr. Foulston is a lawyer, I am reluctant to comment unfavorably
on his credibility as a witness, but it is necessary to do so.  I was not impressed
with Mr. Foulston as a witness and I found some of his testimony entirely
unconvincing.  While Ms. Boyar is clearly no fan of Mr. Foulston, Mr. Foulston
displayed real and in my view, unjustified animosity towards Ms. Boyar through
his demeanour and his tone of voice when speaking about her.  Mr. Foulston
demonstrated that he was highly motivated to assist Ms. Chandler in pursuing
her claim against Mr. Boyar’s estate, as well as advancing his own and this
motivation seemed to come as much from dislike of Ms. Boyar as regard for Ms.
Chandler.  At times during trial, he behaved as if he was Ms. Chandler’s
counsel.  At this trial, he characterized the relationship between Ms. Chandler
and Mr. Boyar in a way that was completely inconsistent with the manner in
which he had portrayed the relationship prior to Mr. Boyar’s death.  If
Mr. Foulston really believed that Ms. Chandler and Mr. Boyar were
“spouses”, as he testified he did, then he was untruthful about the
relationship in statements he made to an insurance adjuster investigating Mr.
Boyar’s motorcycle accident; and he also assisted Mr. Boyar to falsely and
fraudulently deny the existence of a spousal relationship in several documents
including a Mediation Brief, and an application for pension benefits.

[13]        
Where Mr. Foulston’s testimony is in conflict with that of Ms. Boyar, I
prefer and accept Ms. Boyar’s testimony.

[14]        
In general, I was satisfied that Kathleen Chandler (she is known as
“Dolly”) was attempting to tell the truth during her testimony, but I have
concluded that she is not a reliable witness.  During her testimony, Ms.
Chandler repeatedly emphasized her poor memory, her lack of recall of dates,
and her inability to accurately place events in sequence.  She demonstrated
these problems during the trial. She had difficulty at times focusing on the
questions she was asked and was frequently tangential in her responses. 
Episodically during her testimony she was unexpectedly and highly emotional –
breaking into bouts of tears or laughter.  She had a tendency to dramatize
certain events.  She did not look well during the trial, and was quite jittery
at times.   Her counsel informed the Court one morning during the trial that
Ms. Chandler was not feeling well, and the court offered Ms. Chandler an
adjournment, but Ms. Chandler insisted on continuing with her testimony.   There
were internal inconsistencies in her testimony and inconsistencies with the
testimony of other witnesses, including Mr. Johnson, a witness called in Ms.
Chandler’s case.

[15]        
Where Ms. Chandler’s testimony and that of Ms. Boyar is in conflict, I
prefer and accept the testimony of Ms. Boyar.

FACTS

[16]        
William Boyar was born June 8, 1952, the second of three siblings.  He
was 58 years old when he died on January 17, 2011.  Joanne Boyar was born in
1948 and Jill Kemmerling in 1958.

[17]        
The Boyar family lived in Red Deer, Alberta where Mr. Boyar, Sr. worked
for the Canadian Pacific Railway.  In 1966, he was promoted and transferred to
Ontario.  Ms. Boyar stayed with her grandparents in Red Deer to finish high
school.  After graduation, she attended college in Calgary for two years and
then moved to Toronto.  Over the years, Ms. Boyar has worked for various
employers in the financial services sector and in manufacturing.   For many
years Ms. Boyar lived in a common law relationship with James Kremin, until his
death in 2006.

[18]        
Mr. Boyar left Ontario in the early 1970s and moved to British Columbia
where he found work as an industrial crane operator.  Mr. Boyar moved around a
lot due to the nature of his employment.  After Ms. Boyar and Mr. Boyar both
moved out of their parents’ home they did not see much of each other for many
years, but remained in contact through occasional telephone calls.

[19]        
Mr. Boyar, Sr. retired in 1985.  Ms. Boyar took on responsibility for
caring for her parents as they aged.  Mr. Boyar, Sr. died in 1996.  Both Mr.
Boyar and Ms. Kemmerling travelled to Toronto for the funeral.  While they
were in Toronto, Mr. Boyar and Ms. Kemmerling argued – apparently about
Mr. Boyar drinking to excess – and they became estranged.  So far as Ms. Boyar
is aware, Mr. Boyar and Ms. Kemmerling had little or no contact after that
time.  Mr. Boyar did, however, designate Ms. Kemmerling’s son as beneficiary on
one of his employment pension plans.

[20]        
In 2004, Ms. Boyar’s partner, Mr. Kremin, was diagnosed with lung
cancer.  He died in September 2006.

[21]        
After the death of Mr. Boyar, Sr., Ms. Boyar continued to assist her
mother, who lived in her own home.  In May 2006, Mrs. Boyar, Sr. had a stroke
after which she was unable to live independently.  Ms. Boyar helped her mother
move into an assisted living facility.  In 2008, Mrs. Boyar, Sr. had
another stroke leaving her sufficiently disabled to require a move into an
extended care facility.  Ms. Boyar assisted her mother through this transition.

[22]        
At some point, Mr. Boyar began residing in Prince George, B.C., where he
met the defendant, Mr. Foulston.  At the time the two men met, Mr. Foulston was
living in Prince George and working in the forestry industry.  He had obtained
qualifications as a welder, millwright, and steel fabricator.  Mr. Boyar was working
as a crane operator.  Mr. Foulston hired Mr. Boyar to work as a crane
operator on some forestry plant “shut-downs”.  Mr. Foulston testified that Mr.
Boyar liked to drink, but showed up for work regardless.

[23]        
Mr. Foulston is a motorcycle enthusiast.  He testified that in 1980 Mr.
Boyar purchased a motorcycle and began spending time with Mr. Foulston and other
friends who shared an interest in motorcycles.  Mr. Foulston has a cabin at a
lake near Fort St. James and he and Mr. Boyar went hunting and fishing together,
and sometimes took short motorcycle trips to Vancouver Island or the Okanagan.

[24]        
At some point, Mr. Boyar and his partner at the time, a woman called
“Virginia”, moved into a house in Prince George that was on the same street as
Mr. Foulston’s widowed mother’s home.  Mr. Foulston testified that Mr.
Boyar kept an eye on Mrs. Foulston, Sr. and did errands for her, like
shovelling her sidewalk in winter.

[25]        
In 1990, when he was 35 years old, Mr. Foulston enrolled in law school. 
He graduated in 1994.  While he was away from Prince George, Mr. Boyar continued
to provide assistance to Mr. Foulston’s mother.

[26]        
After graduating from law school, Mr. Foulston returned to Prince George
to article with a local law firm.  He stayed with that firm until 2000, when he
set up practice as a sole practitioner in Prince George.   He continued to be a
practicing lawyer at time of trial.  Mr. Foulston uses the title “Northern
Dispute Resolution Services” for his practice.

[27]        
In addition to doing chores for Mr. Foulston’s mother, Mr. Boyar also
assisted Mr. Foulston between 1997 and 1999 by helping him move a 1,000 square
foot house five kilometres from one location to another, and then worked with
Mr. Foulston to complete a major renovation and expansion of the home.  This
work was done without remuneration.    In 2004, Mr. Boyar also ran an excavator
to clear Mr. Foulston’s property in Prince George.  Mr. Foulston said Mr. Boyar
did such a good job the land looked like a “park”.  This work was also
unremunerated.

[28]        
Over the years, Mr. Boyar worked on various jobs in various locations in
British Columbia.  Mr. Foulston recalled that in about 2004 Mr. Boyar was out
of work.  Mr. Foulston gave him $400 to cover a trip to McLeese Lake where Mr.
Boyar got a job at Gibraltar Mine.

[29]        
Katherine Salter – a witness who testified in Ms. Chandler’s case, but
is actually a friend of Mr. Foulston’s – said she had known Mr. Boyar since
1994.  Ms. Salter lives in Prince George.  She recalled that Mr. Boyar
lived with “Virginia” for at least three or four years during the time that Ms.
Salter knew Mr. Boyar.

[30]        
It appears that Mr. Boyar was, at some point, married to a woman whose
name appears in some of the documents as “Viola Visona”.  In an application for
pension benefits signed by Mr. Boyar on June 11, 2009, he referred to Ms.
Visona as “my former spouse”.  There is no evidence about when Mr. Boyar and
Ms. Visona were together or about the length or circumstances of their
relationship.  I infer that Mr. Boyar and Ms. Visona’s relationship was prior
to 1994 as Ms. Salter did not mention Ms. Visona in her testimony.  Although
Mr. Foulston testified he had known Mr. Boyar since the late 1970s and had been
friendly with him since 1980, he made no mention of Viola Visona in his
testimony.  Mr. Foulston witnessed Mr. Boyar’s signature on the
application for pension benefits in which Viola Visona’s name appears.

[31]        
Ms. Salter met the defendant Kathleen Chandler only once before Mr.
Boyar’s death.  She testified that before meeting Ms. Chandler she had heard
Mr. Boyar speak of her.  She understood that Ms. Chandler lived in the Lower
Mainland and that Mr. Boyar and Ms. Chandler were in a relationship.  Mr. Boyar
told Ms. Salter that Ms. Chandler had looked after him after he had a
motorcycle accident.  She knew that Mr. Boyar had visited Ms. Chandler in the Lower
Mainland.  She recalled that the only time she had seen Ms. Chandler and Mr.
Boyar together was at a barbeque at Mr. Foulston’s home in Prince George.  She
recalled that this was in 2008.  Ms. Salter visited Mr. Boyar’s home in Fort
St. James for fishing trips but Ms. Chandler was not present on any of
those occasions.

[32]        
Ms. Chandler testified she was 46 years old at time of trial.   She has
a daughter, Sarah, who was born in 1987.  Ms. Chandler testified that her
relationship with Sarah’s father ended when Sarah was three years old.  Ms. Chandler
testified that Sarah’s father drank a lot, was aggressive and yelled at Sarah,
and did not play an active role in Sarah’s upbringing.

[33]        
Since 1989, Ms. Chandler has been employed by the B.C. Ferry
Corporation.  She described her current position as “janitor” and “terminal
worker”.  Ms. Chandler testified she will be eligible to retire with a pension
in 2021.

[34]        
Ms. Chandler met Mr. Boyar in June 2004.  At that time, as at time of
trial, she was living in Delta.  Ms. Chandler and a female friend – “Linda” – were
driving to Quesnel.  To break up the drive, the two women stopped at a pub in
McLeese Lake.  Mr. Boyar was in the pub and joined Ms. Chandler and her friend
at their table. Ms. Chandler gave Mr. Boyar a t-shirt she had purchased
during her trip.  Mr. Boyar gave Ms. Chandler his telephone number.

[35]        
A few weeks later, Ms. Chandler called Mr. Boyar at the number he had
given her.  During their conversation, he invited her to come to McLeese Lake to
visit him.  He sent her money to pay for the trip and she and her friend Linda
drove up.  Ms. Chandler’s relationship with Mr. Boyar began during this
visit.  After this first visit, Ms. Chandler made more trips to McLeese Lake to
visit Mr. Boyar during the summer and early fall of 2004.  Mr. Boyar usually
gave her money to pay for her travel expenses.

[36]        
Ms. Chandler testified that Mr. Boyar told friends in McLeese Lake that
he was going to marry her.  Ms. Chandler testified that Mr. Boyar said: “I’m
going to marry that bitch”.

[37]        
Mr. Boyar was renting a room in a house in McLeese Lake owned by a
friend − Barry
Rogers.  Mr. Boyar was also renting a small house in Prince George.  Ms. Chandler
recalled that on at least one occasion the two of them drove to Prince George
to check on the house there.  At some point, Mr. Boyar gave up the lease on the
Prince George house but the timing is unclear.

[38]        
Ms. Chandler recalled that Mr. Boyar stayed in McLeese Lake until
sometime in 2005 when his job at Gibraltar Mine came to an end.  Ms. Chandler
testified that Mr. Boyar was fired from this job.  She said that sometimes when
she was visiting him and he was drinking, he did not show up for work for a day
or two.

[39]        
Mr. Boyar decided to go to Alberta to look for work.  He visited Ms.
Chandler in the Lower Mainland before heading to Alberta.  Ms. Chandler
testified that she gave him some money and arranged for a friend to lend Mr.
Boyar a car.  Mr. Boyar got a job at a camp near Leduc, Alberta.  He sent Ms.
Chandler money to visit him in Leduc and she made a trip there to see him,
staying with him for two or three weeks.  Ms. Chandler testified that Mr.
Boyar lost that job because he took a company trailer without authorization and
used it to transport his motorcycle.

[40]        
At some point, Joanne Boyar became aware that Mr. Boyar was dating Ms. Chandler. 
Ms. Chandler called Ms. Boyar on the telephone and introduced herself.  Ms.
Boyar recalled that during their telephone conversation, Ms. Chandler mostly
complained about Mr. Boyar drinking too much.  Ms. Chandler also made telephone
calls to Mr. Boyar’s mother.

[41]        
At some point – again, the timing is unclear – Ms. Chandler and her
friend Linda used Linda’s boyfriend’s truck to move Mr. Boyar’s possessions
from the house in McLeese Lake to Ms. Chandler’s home in Delta.  Ms. Chandler
could not recall where Mr. Boyar was when this happened; she thought perhaps he
was still in Leduc.

[42]        
In about May 2005, Mr. Boyar left Alberta and returned to British
Columbia with the intention of finding work as a crane operator in the Lower
Mainland.

[43]        
For many years, Ms. Chandler has lived in a rented house in Delta, B.C. 
The house is two storeys with a finished basement.  She was living there when
she met Mr. Boyar and she continued to live there at time of trial.   Ms.
Chandler’s daughter, Sarah, had a bedroom for her use in the home and sometimes
lived there, but even before Sarah left high school, she often lived with her
boyfriend at his home; or stayed at the homes of other friends.

[44]        
Ms. Chandler moved into the home with her common law partner of many
years, Steve Johnson.  Steve Johnson testified that he and Ms. Chandler lived
together in what they considered to be a spousal relationship from 1996 until
2003 or 2004, after which, Mr. Johnson testified, they became just friends.  At
times, one or more of Mr. Johnson’s children from a previous relationship also
lived with Mr. Johnson and Ms. Chandler.

[45]        
Ms. Chandler testified her spousal relationship with Mr. Johnson
continued until 2004.   She testified that she and Mr. Johnson argued a lot for
the last year that they were a couple, and stopped having sexual relations, but
continued to share the house until Mr. Boyar moved in in June 2005.

[46]        
When Mr. Boyar moved to the Lower Mainland in about May 2005, he stayed
at a motel for a few weeks but Ms. Chandler did not like the motel and she
wanted Mr. Boyar to move in with her.  She testified that Steve Johnson was
“bitter” and did not want a “roomie”.  Eventually, Ms. Chandler told Mr.
Johnson that Mr. Boyar was moving in despite Mr. Johnson’s objections.  She
testified that Mr. Johnson sometimes had girlfriends stay overnight so she did
not see why her boyfriend could not come over.  She said that Mr. Johnson
decided to move to his mother’s home.

[47]        
Mr. Johnson’s testimony differed from that of Ms. Chandler in some
respects.  He testified that the spouse-like relationship with Ms. Chandler
ended in 2003 although they continued to live in the same home.  He testified
he moved out of the house he had shared with Ms. Chandler and into his mother’s
apartment in 2004.  He testified that he parted from Ms. Chandler not because
Mr. Boyar was moving in, but because his mother needed him to look after her. 
He testified that he moved back in with Ms. Chandler in 2006, after Mr.
Boyar had moved out of the house.  In the interim, Mr. Johnson had become
friendly with Mr. Boyar.  Mr. Johnson was still sharing the home with Ms.
Chandler when he testified at trial.

[48]        
On July 10, 2005, only a few weeks after Mr. Boyar moved into Ms. Chandler’s
home, he was involved in a serious accident while riding his motorcycle.   His
motorcycle collided with a left-turning motor vehicle at an intersection.   Liability
for the accident was in issue, perhaps in part because blood analysis of a
sample taken shortly after Mr. Boyar was admitted to hospital indicated his
blood alcohol content was in excess of .16.

[49]        
The accident was very serious and Mr. Boyar suffered multiple injuries,
including two fractures of one femur; two fractures of one ankle; a torn
rotator cuff and dislocated tendons in his right shoulder; an injury to a
ligament in his right knee; and a possible head injury.  He spent more than a
month at Vancouver General Hospital, where he had surgeries to repair the leg
and ankle fractures and the shoulder injuries.  Following surgery, he developed
a serious infection in his lower leg and pressure sores on his lower back.

[50]        
Ms. Chandler testified she learned about Mr. Boyar’s accident when she
received a telephone call from him in the evening on the day of the accident. 
He told her he was in hospital.  She called Mr. Boyar’s mother to inform her. 
Mr. Boyar’s mother asked her to phone Joanne Boyar and she did.

[51]        
Ms. Chandler testified that she does not have a driver’s licence
although there are references in the evidence to Ms. Chandler driving a vehicle. 
During the weeks that Mr. Boyar was in hospital following the motorcycle
accident, Ms. Chandler took the bus to the hospital to visit him, or Steve
Johnson drove her there.

[52]        
Near the end of August 2005, Mr. Boyar was discharged from hospital and
he moved back to Ms. Chandler’s home.  He stayed on the main floor of the house
so he would not have to navigate stairs.  Nurses came to the home to clean Mr.
Boyar’s wounds and change his dressings.  Home care assistants, paid for by Mr.
Boyar’s insurer – the Insurance Corporation of British Columbia – (“ICBC”) came
into the home regularly to assist Mr. Boyar, to make meals, clean the house and
do laundry.

[53]        
In August 2005, Ms. Chandler went to Salmon Arm to visit her father, who
was ill at the time.  Ms. Chandler said she felt okay leaving Mr. Boyar because
“… Bill has nursing care practically around the clock”.

[54]        
I am satisfied however, that Ms. Chandler helped to look after Mr. Boyar
when he was recuperating in her home.  She described helping him with toileting
and other personal care.

[55]        
Mr. Chandler testified that after the motorcycle accident, she and Mr.
Boyar were no longer sexually intimate.  She said Mr. Boyar was not physically
capable of maintaining an erection.  They continued, however, to be physically
affectionate, holding hands, kissing and hugging.

[56]        
Ms. Chandler testified that while Mr. Boyar was recuperating from his
injuries he was drinking a lot of alcohol and he was concerned that the home
care workers would let ICBC know about his drinking problem, so he cancelled
the home care services in the latter part of December 2005.   Mr. Boyar
testified on an examination for discovery in his personal injury action in May
2008 that Ms. Chandler cancelled the home care services because she was tired
of having outsiders in her home.

[57]        
Following Mr. Boyar’s accident, Ms. Chandler continued to work at her
regular job.  She testified that the Human Resources department eventually suggested
that she take a leave of absence because she had been missing some days of
work.  Ms. Chandler testified that at some point in 2005 she did take a
leave of absence and it became extended for reasons unrelated to Mr. Boyar, but
her testimony was vague and inconsistent in relation to this topic.

[58]        
Although some documents relating to Ms. Chandler’s employment with B.C.
Ferry Corporation were entered as exhibits, the documents do not establish that
Ms. Chandler took a leave of absence to assist Mr. Boyar, or that her
pension was detrimentally affected as a result.  Ms. Chandler’s counsel
essentially conceded this point during closing submissions.  Ms. Chandler did
not testify about the details of her employment arrangements – whether the
leave or any part of it was unpaid.  Ms. Chandler has failed to prove, on a
balance of probabilities, that she lost pension credits as a result of the
assistance she provided to Mr. Boyar.

[59]        
In any event, Ms. Chandler was working in January 2006.  She testified
that from January to May 2006 she was assigned to work with a large cleaning
machine – she said it was like a “Zamboni” – and it caused problems with her
elbows so she took a whole year off.  She explained there was another period of
time when she was not working because of some administrative problem.

[60]        
As his recovery progressed, Mr. Boyar was able to ambulate with the
assistance of crutches.  One day when Steve Johnson arrived at the house, Mr.
Boyar left the house, got into Mr. Johnson’s vehicle, and asked Mr.
Johnson to take him for a drive.  The two men went to a pub together.  After
that time, they occasionally socialized together, including watching televised
sports events at local drinking places.

[61]        
Ms. Chandler testified that Mr. Boyar was prescribed oxycontin after the
motor vehicle accident.  The medication had a sedating effect – Ms. Chandler
testified that when Mr. Boyar took the medication he looked like he was asleep. 
She called it “being on the nod” – an expression I understand to refer to the
condition of someone who has just injected a narcotic like heroin.  Ms.
Chandler said Mr. Boyar was not using illegal drugs at that time because he
could not get them.

[62]        
By early 2006, Mr. Boyar had regained considerable mobility.  Ms.
Chandler testified that Mr. Boyar was going to the local pub and gambling quite
a bit and he began using cocaine.  Ms. Chandler said Tsawwassen is a small town
and she was afraid her employer would hear that she was hanging out with a drug
addict, so she argued with Mr. Boyar about his drug use.

[63]        
Ms. Chandler’s testimony about Mr. Boyar’s drug use was not entirely
clear.  She testified at one point that she knew he was using cocaine but did
not know he was using crack cocaine until after he moved out of her home.  She
later testified that he was burning holes in her furniture with his crack pipe,
and that she purchased Brillo pads for him to use in his crack pipe.

[64]        
Mr. Boyar moved out of Ms. Chandler’s home at the end of January 2006. 
He rented a trailer located on the Tsawwassen First Nations reserve and lived
there on his own.

[65]        
Ms. Chandler testified that despite Mr. Boyar having moved into separate
accommodation, their relationship continued as before.  I am satisfied,
however, that after he moved out of Ms. Chandler’s home in February 2006, Mr.
Boyar’s relationship with Ms. Chandler changed in a material way.

[66]        
After the accident, either Ms. Chandler or Mr. Boyar contacted a lawyer
Mr. Boyar knew in Prince George – Brian Gilson – to handle Mr. Boyar’s
claim for damages resulting from the accident.  Mr. Gilson declined to
represent Mr. Boyar as he restricts his practice to criminal law.  Eventually,
Mr. Boyar was referred to Dennis Daly, a lawyer practising in Kelowna who had
previously worked in Prince George.

[67]        
Mr. Boyar hired Mr. Daly to represent him in pursuing a lawsuit for
damages for the injuries suffered in the motorcycle accident.  Numerous
documents from Mr. Daly’s client file were entered into evidence.  The documents
indicate that Ms. Chandler spoke frequently with Mr. Daly or his staff,
often complaining about Mr. Boyar’s behaviour and his drinking.  Some of
the earlier documents in Mr. Daly’s file – documents dated July and August 2005
– refer to Ms. Chandler as Mr. Boyar’s “wife”.  It is not clear whether Mr.
Boyar or Ms. Chandler ever described Ms. Chandler in this way, or whether Mr.
Daly and his staff simply assumed the relationship.

[68]        
However, another document obtained from Mr. Daly’s file indicates that after
Mr. Boyar moved out of Ms. Chandler’s home, he no longer considered her to be
his girlfriend, let alone his wife.  The memorandum extracted from Daly’s file
and dated March 6, 2006 reads:

I received a call last week
from Mr. Boyar.  He advised that he did not want anyone speaking with his
previous girlfriend, Dolly, about his file.  If she calls, he wants us to tell
her that he has asked us not to speak with her about his file.

He
also does not want his mail going to her address anymore.  His new mailing
address is Box 280, 5158 – 48 Avenue, Delta, BC V4K 5B6.  I have changed the
address in the client.ltr.  His new telephone number is ….. 

[69]        
Ms. Chandler’s testimony that her relationship with Mr. Boyar was
unchanged despite Mr. Boyar having established a separate residence is also
contradicted by statements made in a Mediation Brief prepared by Mr. Boyar’s
counsel Allan Elliott (who took over from Mr. Daly).  In the Brief,  prepared
in 2008, Mr. Elliott wrote:

Mr.
Boyar was never married.  He has no children and his last long term
relationship ended many years ago.  His relationship with Dolly ended shortly
after he was hurt.  It is unlikely that Mr. Boyar’s matrimonial circumstances
are going to change in the future.  Thus, he has no children to care for him
and it is unlikely that he would marry or find someone who would be prepared to
care for him….

Mr.
Boyar and Dolly lived together only for a brief time before he was injured. 
After he was injured, Dolly welcomed him back into her home to take care of him
until January of 2006.  She found Mr. Boyar to be a changed man and living with
him was intolerable.  Their relationship deteriorated.  Dolly helped Mr. Boyar
to move into a rented trailer on Tsawwassen Indian Band land.

[70]        
While I do not accept Ms. Chandler’s testimony that her relationship
with Mr. Boyar did not change when he moved out of her home early in 2006,
I do accept her testimony that she and Mr. Boyar continued to see each other
often after he established his own residence.  She testified that he lived near
her workplace and she stopped by to visit him almost daily.  Ms. Chandler likes
plants.  She planted flowers and shrubs in his yard.  Mr. Foulston testified
that when he visited Mr. Boyar in the summer of 2006, Ms. Chandler was often present.

[71]        
After Ms. Boyar learned about Mr. Boyar’s motorcycle accident in July
2005, she telephoned Mr. Boyar at the hospital.  She kept in touch with him
during his hospitalization and also communicated with Ms. Chandler and with the
health care professionals who were providing care to Mr. Boyar.  She did not
travel to British Columbia to visit Mr. Boyar.  Mr. Kremin’s health was
deteriorating and Ms. Boyar was occupied caring for him.

[72]        
After the accident, the two siblings became closer than they had been in
the past and communicated more often.  Ms. Boyar testified she never challenged
Mr. Boyar or judged him – he was who he was; but she encouraged him to
limit his drinking.  Mr. Boyar sent Ms. Boyar cards for her birthday; and at
Christmas and Easter, containing affectionate messages.  Ms. Boyar sent Mr.
Boyar money when he seemed to be short of funds, including during the time he
was living in Ms. Chandler’s home recuperating from his injuries.

[73]        
Ms. Chandler testified that she and Mr. Boyar were broke in 2005 and in
danger of eviction.  Ms. Boyar testified that Mr. Boyar told her he had had
savings of about $15,000 but that Ms. Chandler had spent all his savings
between July and December 2005.

[74]        
Mr. Foulston and Mr. Boyar had been out of touch for some time and it was
not until some months after the accident that Mr. Foulston learned that Mr.
Boyar had been injured.  He got in touch with Mr. Boyar.   After Mr. Boyar
moved out of Ms. Chandler’s home at the end of January 2006, he flew to
Prince George and stayed with Mr. Foulston for two or three weeks before
returning to the trailer on the Tsawwassen reserve.   Mr. Foulston thought Mr.
Boyar seemed depressed and he was drinking a lot – a 40 ounce bottle of alcohol
every day.  He was also taking prescription oxycontin.

[75]        
On July 7, 2006, Mr. Boyar signed an application for Canada Pension Plan
disability benefits.  Ms. Chandler filled out the application for Mr. Boyar.  A
section of the form provides choices for marital status.  The choices are
“single”, “separated”, “widowed”, “married”, “divorced” and “common-law”.  Ms.
Chandler ticked the box for “single”.  Both Mr. Boyar and Ms. Chandler
described themselves as “single” on their respective tax returns in 2006 and
2007.

[76]        
In late July or August 2006, Mr. Foulston took a motorcycle trip to
Vancouver Island.  He stopped off in Tsawwassen and stayed with Mr. Boyar for a
couple of days on the trip down and the return trip.  Ms. Chandler came over to
Mr. Boyar’s trailer every day during Mr. Foulston’s visit.  This was the first
time Mr. Foulston had met Ms. Chandler in person although he had spoken to her
on the phone.  Mr. Boyar was still drinking heavily and taking oxycontin for
the pain associated with his accident injuries.

[77]        
At some point, Mr. Boyar’s lawyer – Dennis Daly – was diagnosed with
cancer and Mr. Boyar’s file was passed on to lawyer Allan Elliott at the law
firm of Pushor Mitchell in Kelowna.  Mr. Elliott represented Mr. Boyar until
Mr. Boyar’s personal injury lawsuit was settled in 2009.

[78]        
In December 2006, Mr. Boyar again travelled to Prince George and spent a
few weeks with Mr. Foulston.  Mr. Foulston did not see Mr. Boyar using drugs
during this visit, but Mr. Boyar was drinking heavily.  Mr. Foulston thought
Mr. Boyar had deteriorated since he had last seen him, that he looked thin and
gaunt.  He suggested that Mr. Boyar should move back to Prince George.

[79]        
Mr. Boyar returned to his home on the Tsawwassen reserve after the visit
to Prince George.  Mr. Foulston testified that in the ensuing weeks and months
when Mr. Foulston spoke to Mr. Boyar by telephone, Mr. Boyar was often drunk. 
Ms. Chandler told Mr. Foulston that Mr. Boyar had also been using
cocaine.  Mr. Boyar sometimes asked Mr. Foulston about the content of
letters he had received from his lawyer, Mr. Elliott.  Mr. Foulston said he
would have to see the letters in order to comment.

[80]        
As stated earlier, Joanne Boyar was in regular telephone communication
with her brother in 2006.  She also communicated with some of his caregivers,
in particular Maureen Woodward, an occupational therapist assigned to
coordinate Mr. Boyar’s rehabilitation services.   In December 2006, Ms.
Boyar sent an e-mail to Ms. Woodward, which she copied to Mr. Foulston,
expressing her concern that Mr. Boyar was having a lot of pain and seemed
to be depressed.  She stated her desire to come to Vancouver to meet with Ms.
Woodward and Mr. Boyar to discuss next steps.  Ms. Woodward responded.  She
wrote that she had visited with Mr. Boyar in his home on a number of
occasions; that the home was always clean and bright; that he did not want
anyone coming in to help him; and that he had great neighbors who were
extremely supportive of him.

[81]        
In March 2007, Mr. Boyar again travelled to Prince George to attend a
friend’s 50^th birthday party.  He stayed at Mr. Foulston’s home.  He
showed Mr. Foulston some of the correspondence he had received from his
counsel, Allan Elliott.  Mr. Foulston suggested to Mr. Boyar that he
authorize Mr. Elliott to communicate with Mr. Foulston.  Mr. Foulston knew
Mr. Elliott because they had been at law school at the same time.  Mr. Foulston
contacted Mr. Elliott and then had Mr. Boyar sign a document authorizing Mr.
Elliott to release information to Mr. Foulston.  Mr. Foulston sent the authorization
to Mr. Elliott on March 13, 2007.

[82]        
No retainer agreement between Mr. Foulston and Mr. Boyar is in
evidence.  There is no evidence that the two men discussed fees, or hourly
rates. Numerous documents from Mr. Elliott’s file were entered into evidence. 
There is no reference in any of those documents to Mr. Foulston having been
retained by Mr. Boyar, or any fee-splitting arrangement between Mr. Elliott
and Mr. Foulston, a matter that would have been of interest to Mr. Elliott, I
conclude, because it would impact on the contingency fee percentage that Mr.
Elliott would be permitted to collect from Mr. Boyar.  Mr. Foulston did
not call Mr. Elliott as a witness at trial.

[83]        
Following his visit to Prince George in March 2007, Mr. Boyar returned
to his home in Tsawwassen.  On April 2, 2007, Mr. Elliott wrote to Mr. Boyar
indicating it had been helpful “…to speak to your friend Rick Foulston”
(underlining added).  He confirmed that he would be copying all significant
correspondence and reports to Mr. Foulston and said he was happy to do
that, but:

…we
also want to ensure that we are answering all of your questions and dealing
with any issues or concerns that you have so if you have any questions or
concerns, please also speak to us about it.

[84]        
In late May or early June 2007, Mr. Boyar again travelled to Prince
George.  According to notes in Mr. Elliott’s file, Mr. Foulston telephoned Mr.
Elliott on June 13, 2007 and told Mr. Elliott that Mr. Boyar had moved to
Prince George.

[85]        
Mr. Foulston testified, however, that Mr. Boyar’s stay in Prince George
lasted only a short time.  Mr. Foulston told him he could not use cocaine or
drugs or drink hard alcohol in his home.  He took Mr. Boyar to see his own
doctor – Dr. Higgins – and tried to get Dr. Higgins to put Mr. Boyar in a pain
clinic.  Mr. Boyar was sick for the first couple of weeks that he stayed with
Mr. Foulston but then seemed to be doing better.  He drove Mr. Foulston’s lawn
tractor to get around town.  On Mr. Boyar’s birthday – June 8 – Mr. Foulston
took him for a ride on his motorcycle – the first time Mr. Boyar had been on a
motorcycle since his accident in July 2005.

[86]        
Near the end of June, however, Mr. Foulston returned home to find both
Mr. Boyar and Mr. Foulston’s mother’s car were missing.  Mr. Boyar did not
return home that night.  When he did return, Mr. Foulston believed Mr. Boyar
had been using drugs.  He drove him to the airport and Mr. Boyar flew back to
the Lower Mainland.

[87]        
After Mr. Boyar returned to the Lower Mainland in late June and until
the end of December 2007, Mr. Foulston and Mr. Boyar had little or no contact
with each other.  Mr. Foulston did have some communication with Mr. Elliott. 
In particular, there is correspondence in evidence concerning overpayment of
disability benefits by Sun Life and also benefits paid by Canada Pension Plan. 
Mr. Foulston was apparently holding some funds for Mr. Boyar and on August 21,
2007 sent a bank draft for $14,000 to Mr. Elliott.

[88]        
Sometime in 2007, Mr. Boyar went on a vacation to Mexico.  He made a
second trip to Mexico in 2008.  Ms. Chandler did not accompany Mr. Boyar on
either of these trips.  On at least one of the trips, Mr. Boyar was accompanied
by a friend, Barry Rogers.

[89]        
In August 2007, Steve Johnson moved back into the home in Delta with Ms. Chandler. 
He said he slept in an upstairs bedroom known as “the computer room”.

[90]        
In November 2007, Mr. Foulston had a heart attack.  He was hospitalized
in Vancouver for a few days and was then recuperating at home in Prince
George.  He began downsizing his law practice in order to have less stress in
his life.

[91]        
In early November 2007, Mr. Elliott arranged for an occupational
therapist to prepare a cost of future care analysis for Mr. Boyar’s personal
injury action.  The report indicates that at that time Mr. Boyar was receiving
21 hours a week of paid homemaking assistance (he was living alone in
Tsawwassen at that time).  The report also indicated that a neighbour – I infer
that this was Ms. Chandler – was helping Mr. Boyar with yard maintenance.

[92]        
On Christmas day, 2007, Mr. Boyar unexpectedly arrived at Mr. Foulston’s
home in Prince George.  Mr. Boyar had driven up from the Lower Mainland.  He
was intoxicated and had a bottle of whiskey in his hand, but told Mr. Foulston he
had thrown his cocaine pipe out of his truck window 20 miles back.  Mr.
Foulston testified that Mr. Boyar told Mr. Foulston he had to leave the
coast or he was going to die there.

[93]        
In evidence, is a traffic violation citation Mr. Boyar apparently
received on the trip to Prince George.  It indicated he had no licence plate on
his vehicle; something was wrong with the windshield; and he was speeding.

[94]        
On January 7, 2008, Mr. Boyar flew to Vancouver for medical appointments
related to his personal injury lawsuit.  He returned to Prince George on
January 8.  Mr. Foulston arranged for the flight and paid for it but was later
reimbursed by Mr. Elliott’s office.

[95]        
Mr. Boyar decided to stay on in Prince George.  He and Mr. Foulston
agreed that Mr. Boyar would live with Mr. Foulston.   At the time, Mr. Foulston
was renting the house he was living in from his brother.  He was paying his
brother $600 a month in rent.  He charged Mr. Boyar $400 a month rent, plus a
share of telephone and utilities; and half the cost of food.  He reduced the
rent to $300 for the month of February 2008, because Mr. Boyar was in Toronto
for a few weeks that month.

[96]        
Ms. Boyar testified that Mr. Boyar complained to her that the amount Mr. Foulston
was asking him to pay for rent, food, and utilities kept changing and that they
were consuming a bottle of wine every evening.  At one point, he told her he
owed Mr. Foulston $1,400.  Ms. Boyar sent Mr. Boyar the money to pay Mr. Foulston.

[97]        
Mr. Boyar’s bank statements indicate that in 2008 he was receiving
income from three sources.  He was receiving Canada Pension Plan payments of
just over $1,000 a month; a pension indicated as “WSIB” of about $370 a month;
and a disability insurance payment from Sun Life of just over $1,000 a month.

[98]        
Mr. Boyar remained in regular telephone contact with Ms. Chandler during
the time he was living in Prince George.  Mr. Foulston also talked to Ms. Chandler
on the phone.

[99]        
From time to time, Ms. Boyar spoke by telephone with Mr. Foulston.  Mr. Foulston
complained to her that Mr. Boyar had more money than he did and that Mr. Boyar
was not the only person with pain – in other words, that Mr. Boyar was ungrateful. 
Ms. Boyar spoke to Mr. Boyar.  He told her he had cleared Mr. Foulston’s land
and done lots of labour for Mr. Foulston and he did not owe Rick anything.  Mr.
Foulston agreed in cross-examination that in the summer of 2008, Mr. Boyar ran
an excavator to clear trails on Mr. Foulston’s recreational property.  Mr.
Boyar told Ms. Boyar he did this work for Mr. Foulston despite being in pain.

[100]     In
February 2008, Mr. Boyar travelled to Toronto for two weeks to visit Ms. Boyar
and his mother.  He stayed at Ms. Boyar’s home.  While Mr. Boyar was in
Toronto, he and his sister visited the memorial garden where their father’s
ashes had been interred.  A memorial plaque had been purchased for the site. 
Mr. Boyar told Ms. Boyar that he wanted his ashes to be placed in the same
location when he died and he wanted a similar plaque.  He asked Ms. Boyar to
order the plaque for him and she did.

[101]     Following
this trip to Toronto, Mr. Boyar went back to Prince George and to Mr.
Foulston’s home.

[102]     During
2008, Mr. Elliott was pursuing Mr. Boyar’s claim for damages arising out of the
motorcycle accident and preparing to go to trial.  Mr. Boyar had a number of
independent medical examinations arranged by Mr. Elliott.

[103]     Mr. Boyar
was examined for discovery in New Westminster on May 13, 2008.  At the
discovery, he was asked about his relationship with Ms. Chandler prior to the
motorcycle accident.  The following exchange took place:

19      Q  And were you living in a common-law
relationship at the time of this accident, or were you simply a tenant in her
home, or what?

A 
We were common-law at the time, yeah.

20      Q  Okay.  And at that time did you continue,
were your plans to continue living in a common-law relationship with her in
Delta?

A  At the time, yes.

[104]     A note
from Mr. Elliott’s file indicates that he told Mr. Foulston on May 28, 2008
that an ICBC representative wanted to speak to Mr. Foulston and Mr. Foulston
said he was willing to be interviewed.   I infer that ICBC wanted to speak to
Mr. Foulston because he was likely to be a “before and after” witness for
Mr. Boyar if the matter went to trial, and because Mr. Boyar was advancing an
“in trust” claim related to Mr. Foulston.

[105]     On June
11, 2008, Mr. Boyar received a 24 hour roadside suspension, followed by a 90-day
driving prohibition after his blood alcohol content was found to exceed .08. 
On June 13, 2008, police found a baggie of marijuana in Mr. Boyar’s
possession.  Mr. Gilson represented Mr. Boyar in relation to these charges.

[106]     A session
of mediation to attempt to resolve Mr. Boyar’s personal injury lawsuit was
scheduled for June 27, 2008.  The evidence does not confirm that the mediation
actually took place, but I infer that it did.   Mr. Elliott prepared an
extensive Mediation Brief.  Mr. Foulston testified that Mr. Elliott sent a copy
of the Mediation Brief to Prince George and that Mr. Foulston reviewed the
Brief and discussed it with Mr. Boyar.

[107]     The
Mediation Brief prepared by Mr. Elliott made no mention of Mr. Boyar ever returning
to the Lower Mainland to resume living with Ms. Chandler; or that their
relationship was ongoing.  Instead, the Brief stated that Mr. Boyar wanted
to get a home of his own, “…perhaps near to where his friends in Prince George
live”.  I have already quoted the paragraphs from the Brief describing Mr.
Boyar’s relationship with Ms. Chandler.

[108]    
Mr. Elliott asked Mr. Foulston to prepare a statement in advance of the
mediation in support of the “in trust” claim being advanced; and Mr. Foulston
prepared a statement dated June 11, 2008.  In the statement, Mr. Foulston
described the assistance he was providing to Mr. Boyar, as follows:

I have and continue to assist
Bill in the following ways:

1.       I work with him to ensure he remembers to do
his medications properly and get the appropriate prescriptions and renewals.

2.       I keep track of his appointments and
commitments and ensure he keeps them.

3.       I have provided him with a better bed,
pillows and stuff to try and help him sleep.

4.       I am teaching him to write out plans and keep
notes to keep track of things he has to do as he cannot remember things.

5.       I work with him to manage his finances and
ensure his bills are paid.

6.       I make a list for Bill of things he has to or
can do for the day.

7.       I do anything Bill can no longer do
physically for himself.

8.       I look after the house and domestic stuff
including all groceries, shopping, cooking maintenance and repairs.

9.       I
talk with Bill and try to get him to think of the future and plan for it in a
positive but realistic manner so he can function as independently as possible
in the future.

[109]     On June
12, 2008, Mr. Foulston was interviewed by an ICBC insurance adjuster.  The
interview was recorded and a transcript was prepared and sent to Mr. Foulston
on June 20 with a request that he review it and notify the adjuster if there
were any errors.  During the interview, Mr. Foulston told the adjuster that Mr. Boyar
was living with him permanently.  He agreed with the adjuster’s suggestion that
Ms. Chandler was “just a friend” of Mr. Boyar’s and that Mr. Boyar was not
currently married.   He said that when Mr. Boyar was living in the Lower
Mainland in 2007 he “…really had no personal support”.

[110]     On June
17, 2008, Mr. Boyar was interviewed by an occupational therapist for an
“Activities of Daily Living – Home Assessment”.  The report stated that Mr.
Boyar was staying with his friend, Mr. Foulston, “temporarily”.  Mr. Boyar
referred to Ms. Chandler as his “girlfriend”.  He said he talked to her on
the phone daily.

[111]     Mr.
Foulston agreed in cross-examination that by June 2008, the work necessary to
take Mr. Boyar’s case to trial was pretty much done.  Mr. Foulston testified
that Mr. Elliott thought Mr. Boyar could be entitled to damages in the range of
$1.5 million.  Mr. Boyar told Mr. Foulston he intended to use the award to buy
a home on the water, a boat, a motorcycle and a couple of snow machines.

[112]     In July
2008, Mr. Elliott wrote a letter to Mr. Boyar, copied to Mr. Foulston,
confirming that Mr. Boyar had instructed Mr. Elliott to make a formal offer to
settle his claim for the sum of $975,000.  Mr. Foulston testified that he and
Mr. Elliott figured that would be enough money for Mr. Boyar to pay Mr. Elliott
for his legal services, and buy a house.

[113]     At some
point, ICBC proposed that there be a “structured settlement”.  Mr. Foulston
told Mr. Elliott that Mr. Boyar wanted to buy a house, so not all of the
settlement funds should go into a structured settlement.  Mr. Foulston did not
testify that he ever told Mr. Elliott that Mr. Boyar would need some of the
funds to pay Mr. Foulston for his services.

[114]     On July
18, 2008, Mr. Elliott wrote to defendant’s counsel in the personal injury
action asking the defendant to admit liability for the accident.  Around the
same time he made an offer to settle the damages claim for $975,000.

[115]     On
September 16, 2008, Mr. Boyar flew to Toronto and stayed in Ms. Boyar’s home
for two and one half months.  Ms. Boyar went away on an extended vacation about
a week after Mr. Boyar arrived.  Mr. Boyar looked after Ms. Boyar’s home and
dog while she was away, and he spent time visiting his mother.  While he was in
Toronto, he purchased some cowboy boots as a gift for Ms. Chandler.  Ms. Boyar
returned from vacation in November and Mr. Boyar stayed with her for about a
month after she got back.  He flew back to Vancouver on December 1, 2008.

[116]     On his
return from Toronto, Mr. Boyar stopped off in the Lower Mainland and then he
and Ms. Chandler took a flight to Prince George, packed up the belongings Mr.
Boyar had left at Mr. Foulston’s house, picked up Mr. Boyar’s dog, and drove to
the Lower Mainland.  Mr. Boyar’s bank statements indicate charges in Ladner in
December 2008 from which I infer he spent Christmas with Ms. Chandler that
year.  The evidence does not disclose when Mr. Boyar had given up the lease on
the trailer on the Tsawwassen reserve.

[117]      Sometime
in late 2008 or early 2009, a settlement was reached between Mr. Boyar and
ICBC.   In January 2009, Mr. Boyar received a $30,000 advance from ICBC and
used the money to purchase a new truck.

[118]     Ms.
Chandler testified that in March 2009 she applied to add Mr. Boyar to her
medical and dental insurance plan through her employer.  She said that because
Mr. Boyar had settled his personal injury claim, ICBC was no longer paying
for his prescriptions, so she had him added to her plan.  She testified that
listing him as her spouse was the only way she could get medical benefits for
him; that she was not even able to include her daughter on the medical plan.

[119]     There are
no documents about the settlement reached with ICBC or the pay-out of the funds
to Mr. Boyar, but Mr. Foulston testified the gross settlement amount was
$865,000 including the $30,000 Mr. Boyar had received as an advance in
January.   After paying Mr. Elliott’s fees and disbursements, Mr. Boyar
received $473,000.  He deposited that amount to his bank account in late April
2009.

[120]     Mr.
Foulston did not immediately learn that Mr. Boyar had received the settlement
funds. After Mr. Boyar left Prince George in December 2008, Mr. Foulston did
not see Mr. Boyar until sometime in May 2009.  He said Mr.  Boyar showed up in
Prince George in a new truck and that he was all proud and “cock of the walk”. 
He testified that Mr. Boyar told him he was going to send Mr. Foulston and Mr.
Foulston’s girlfriend Brenda Fenton to the Nascar races in Daytona, Florida.  Mr.
Boyar told Mr. Foulston he would meet up with him the next day because he
wanted to deal with some “pension stuff”, but Mr. Boyar did not turn up the
next day.  Mr. Foulston heard that Mr. Boyar was in downtown Prince George and
was drunk and stoned.  A few days later, Mr. Foulston went into the bar of a
hotel downtown and found Mr. Boyar there, drinking whiskey and appearing to be
on drugs.

[121]     A week
later, Mr. Boyar called Mr. Foulston and they met.  On May 27, 2009, Mr.
Foulston helped Mr. Boyar fill out the forms to apply for his retirement
pension from the Operating Engineers’ Pension Plan.  Mr. Foulston witnessed Mr.
Boyar’s signature on several pages of the application documents.  Mr. Boyar had
several options to choose from for the payout of his pension but the form
indicated that if he had a spouse, Pension Benefits Standards Legislation
required him to choose an option that provided for a pension for his spouse. 
Mr. Boyar chose one of the options that did not provide for a spousal pension. 
Mr. Foulston witnessed Mr. Boyar’s signature at the bottom of the page,
directly below the reference to the Pension Benefits Standards Legislation.

[122]     Mr. Boyar
completed a “Declaration of Marital Status Form” on which he declared that he
did not have a spouse.   Mr. Foulston also witnessed his signature on that
form.

[123]     Mr. Boyar
completed a Beneficiary Designation Declaration.  Mr. Foulston testified that
Mr. Boyar had earlier designated Ms. Kemmerling’s son as his beneficiary and he
wanted to change that.  Mr. Foulston told Mr. Boyar he could designate Ms.
Chandler as his beneficiary but Mr. Boyar said he wanted his estate to be the
beneficiary.  Mr. Foulston witnessed his signature on that form.

[124]    
Something in Mr. Boyar’s Operating Engineers’ records must have referred
to Viola Visona because on June 11, 2009, Mr. Boyar signed a letter titled “To
Whom It May Concern” stating:

My
former spouse Viola Visona has no claim to my Operating Engineers’ Local 1115
pension now or in the future.

Mr. Foulston witnessed Mr. Boyar’s signature on that letter.

[125]     Mr.
Foulston testified that around this time Mr. Boyar showed him a bank statement
indicating Mr. Boyar had $425,000 in his bank account.  Mr. Boyar told Mr. Foulston
that he had spent $30,000 to buy a motorcycle from Barry Rogers.  Mr. Foulston
testified that Mr. Boyar said he could not afford to give Mr. Foulston any
money because he had only got half the amount of funds that he had been
expecting, but he would look after Mr. Foulston “… in the Will”.  Mr. Foulston
said he did not have a problem with not getting paid.  He said that he trusted
Mr. Boyar.  Mr. Foulston testified that he knew Mr. Boyar needed at least
$200,000 to buy a house and that he would need cash in case something came up.

[126]      Mr.
Foulston testified that Mr. Boyar and he talked about Mr. Boyar making a Will
and that Mr. Boyar said he was going to look after Ms. Chandler and Mr. Foulston
and leave Ms. Boyar enough to pay for a burial plot and his funeral.  Mr.
Foulston testified that Mr. Boyar asked him to prepare a Will but he told Mr. Boyar
he could not because he would be a major beneficiary and Mr. Boyar’s sister
would accuse him of preparing the Will and undue influence and he would get sued. 
He suggested that Mr. Boyar should see Mr. Gilson to get a Will prepared.

[127]     I believe
some of Mr. Foulston’s testimony on this point, but not all.  I believe that
Mr. Foulston may have recommended to Mr. Boyar that he make a Will.  Mr.
Foulston had never met Mrs. Boyar and only spoken to her a few times by
telephone so he had no reason to believe she would be expecting to benefit or
that she would be inclined to sue him if she did not.  I believe Mr. Foulston
has constructed most of this conversation in his own mind.

[128]     Mr. Boyar
wanted to purchase a home at Fort St. James – somewhere on water.  Mr. Foulston
wanted Mr. Boyar to buy a property close to his own recreational property. The
two men looked at a few properties.  Mr. Boyar told Mr. Foulston he had
seen a brochure about a property that interested him – it was riverfront
property – and after the two men went to see the property, Mr. Boyar decided to
make an offer.   Mr. Foulston arranged for an appraiser to look at the property
and he obtained a standard form agreement for purchase and sale from a Prince
George real estate lawyer – Mr. Van Delft.  Mr. Boyar’s offer of $190,000
was accepted.  The purchase price included the furniture in the home.  Mr.
Boyar retained Mr. Van Delft to handle the conveyance for him.  The title was
registered in Mr. Boyar’s name alone.  The transaction closed on June 19, 2009.

[129]     Mr.
Foulston testified that Mr. Boyar was very happy about his new home; that he
said “Serenity now, serenity now” and “Thank the Lord, I have a new life”.    Mr.
Boyar moved into his new home the day of the closing.  Mr. Foulston’s partner
Brenda Fenton helped Mr. Boyar get the house organized.

[130]     Ms.
Chandler testified that after Mr. Boyar got his settlement proceeds, she and
Mr. Boyar had talked about Mr. Boyar making a Will.  Ms. Chandler’s father died
in October 2009.  Ms. Chandler and her brother were co-executors, although her
brother handled most of the estate matters.  Ms. Chandler told Mr. Boyar that
he should put his property in joint names with Ms. Boyar.  Her daughter’s
boyfriend brought some over some Will forms that he had purchased at a
stationery store but the forms were never completed.  Ms. Chandler thought the
forms were too complicated.

[131]     Ms. Boyar
testified that she and Mr. Boyar had also talked about Mr. Boyar going to a
lawyer to have a Will prepared.  She told him he had a house now so he should
have a Will.  They talked about him seeing Mr. Gilson in Prince George.

[132]     On July
10, 2009, Mr. Boyar purchased a recreational boat with motor and trailer.  The
boat was registered in his name only but when he purchased liability insurance
for the boat he listed himself and Mr. Foulston as “principal operators”.  Mr.
Foulston’s own boat had recently sunk.  Mr. Boyar gave Mr. Foulston a key
for the new boat and said Mr. Foulston could use it whenever he wanted.  Mr.
Foulston testified that Mr. Boyar said he would leave the boat to Mr. Foulston.

[133]     Ms.
Chandler testified that Mr. Boyar sent her information about his new house. 
She went up to Fort St. James for several visits in 2009.  She took Mr. Boyar
shopping to purchase things to decorate the home – she said she “Dollied” the
home.  Mr. Boyar paid for the items they purchased.  Ms. Chandler planted
flowers in the yard and cleaned the house when she came to visit.  She made at
least one trip to the Fort St. James house in the winter time and went
snowmobiling with Mr. Boyar and some of his friends.

[134]     Ms.
Chandler testified that she understood Mr. Boyar was supposed to pay everybody
when he got his settlement money but that he told her that he had put her money
into his house.  She said they did not talk very much about living together in
the house.  She had to stay in the Lower Mainland and work 12 more years before
she could retire from her job with B.C. Ferry Corporation.

[135]     Ms.
Chandler also testified that she did not like the thought of living in Fort St.
James; that she would be scared to live there because there were so many native
people in the area.  She did not like the house Mr. Boyar had purchased.  She
said it was cold in winter and the pipes froze.  She said the water in the
house smelled like “egg fart” and the smell of the water made her gag.  She
said Mr. Boyar made her crawl under the house to wrap the pipes and there were
spiders under the house.  She did not like Mr. Boyar’s upstairs bedroom; that
she preferred to sleep on the couch downstairs.

[136]     Ms.
Chandler could not recall if Mr. Boyar ever visited her in the Lower Mainland
in 2009 after purchasing his home in Fort St. James – she thought perhaps he
had made one trip, but she was not sure.  She did not testify that he expressed
any future intention of moving to the Lower Mainland to live with her.

[137]     Brandon
Lukey lives in Fort St. James.  He was a friend of Mr. Foulston’s, although Mr.
Lukey is much younger than Mr. Foulston.  He met Mr. Boyar at Mr. Foulston’s
home sometime in 2008.  After Mr. Boyar purchased his house in Fort St. James,
Mr. Lukey helped him out in various ways, including driving him places when Mr.
Boyar’s driving licence was suspended.  Mr. Lukey recalled that in the summer
of 2009, he drove Mr. Boyar to Delta to pick up his possessions from Ms. Chandler’s
home.  Ms. Chandler accompanied Mr. Lukey and Mr. Boyar back to Fort St.
James.  They all stayed overnight in Cache Creek to break the journey.  Mr. Lukey
had his own room; Mr. Boyar and Ms. Chandler shared a second hotel room.

[138]     In
November 2009, Ms. Chandler helped Mr. Boyar fill out another pension plan
application, this one for a pension he had through Local 793 of the
International Union of Operating Engineers.  Ms. Chandler’s handwriting appears
on the form titled “Declaration of Marital Status Form – Spouse and Assignment
Information”.  On this form, dated November 25, 2009, Mr. Boyar made a
declaration that he did not have a spouse.  Ms. Chandler witnessed his
signature on that document.

[139]     On January
20, 2010, Mr. Boyar completed another “Declaration of Marital Status Form” in
which he certified that he did not have a spouse.

[140]     In January
2010, Mr. Boyar had some medical tests done and in March 2010 he was diagnosed
with rectal cancer.  He was able to do his first round of chemotherapy at home
in Fort St. James, but the next round of chemotherapy and radiation therapy had
to be done at the B.C. Cancer Agency in either Kelowna or Vancouver.

[141]     Ms.
Chandler came up to Prince George to meet with Mr. Boyar and his oncologist. 
Mr. Foulston was also present.  Mr. Boyar said he wanted to have his treatments
in Vancouver.  In July, he went to Vancouver.  He had planned to stay at a
residence for cancer patients near the Cancer Agency but it cost $100 a day,
smoking was not allowed and Mr. Boyar liked to stay up late at night and watch
TV and that disturbed other residents, so he decided to stay with Ms. Chandler
and Mr. Johnson at their home in Ladner.

[142]     Mr. Boyar
stayed alone in the basement bedroom of the Ladner home.  Ms. Chandler and
Mr. Johnson had bedrooms on the upper floor.  Ms. Chandler testified that
Mr. Boyar wanted his privacy.  Mr. Johnson and another friend – Geoff – drove
Mr. Boyar back and forth to the Cancer Agency for most of his treatments.  Mr.
Boyar paid for Mr. Johnson’s gas and parking, and sometimes bought him lunch.

[143]     After
completing chemotherapy and radiation in July, Mr. Boyar returned to his home
in Fort St. James.  Mr. Boyar, Mr. Foulston and Brandon Lukey went fishing
together.  Mr. Boyar had had his driving licence suspended again, so Mr. Lukey
drove Mr. Boyar when he needed to go places – to medical appointments and to do
shopping.  Mr. Boyar gave Mr. Lukey money for gas.  He gave him an old Suburban
automobile that Mr. Lukey wanted for parts.  He paid for Mr. Lukey’s vehicle
insurance.

[144]     Mr. Boyar
returned to the Lower Mainland to have surgery in July 2010.  Tests indicated
he needed a pacemaker and he had a procedure to implant a pacemaker in advance
of his scheduled surgery.

[145]      Mr. Boyar
and Ms. Boyar were in regular contact after Mr. Boyar’s cancer diagnosis. 
He told her about the treatment he was having.  He told her he did not want to
have his surgery in Prince George – that a friend of his had died there – so he
was going to Vancouver to have treatment and would stay with Ms. Chandler.  Ms.
Boyar asked Mr. Boyar what the relationship was between Ms. Chandler and Mr.
Johnson.  Mr. Boyar said he did not know and he did not care.

[146]     Mr. Boyar
was scheduled to have surgery to remove the rectal tumor and install a “stoma”
on July 29, 2010.  He talked to Ms. Boyar on the telephone on July 27, 2010. He
asked her to come to Vancouver.  He also asked her to write a Will for him.  He
said he had found out he did not have to have a lawyer prepare a Will; he could
just draw it up and sign it and have two witnesses sign it.  She asked him what
he wanted to put in the Will.  He said he wanted her to be the executor and the
sole beneficiary.  Ms. Boyar got out her own Will and using that as a template,
wrote a Will for Mr. Boyar.  She also wrote out a document titled “Power of
Attorney for Personal Care”.  She mailed the documents to the hospital in
Richmond, B.C. where Mr. Boyar was having his surgery done, but the documents
went astray.

[147]     Mr. Boyar
had his surgery on July 29.  Ms. Boyar flew to Vancouver on August 5, rented a
car at the airport and drove to the hospital where Mr. Boyar was recovering
from the surgery.  She arrived at the hospital at about 2:30 p.m.  Mr. Boyar’s
friend “Geoff” was there.  The three of them visited for a while.  Ms. Boyar
had brought copies of the Will and Power of Attorney for Personal Care that she
had drafted.  She gave the documents to Mr. Boyar.  He read the documents and
she asked him if that was what he wanted and he said yes.  He asked her to put
the documents into a small suitcase he had with him and she did.  He asked Ms.
Boyar to get him some thank you cards to give to his doctor and his nurses. 
She said she would.

[148]     Ms. Boyar
stayed and visited with Mr. Boyar until about 8:00 p.m. on August 5 and then
went to her hotel.  She returned to the hospital the next day and gave Mr. Boyar
the thank-you cards he had asked her to get.  They chatted.  Mr. Boyar told Ms.
Boyar he was starting to feel much better.  Ms. Chandler and Mr. Johnson
arrived later in the day.  Mr. Boyar’s doctor came in during the afternoon, and
at about 6:00 p.m., Mr. Boyar was discharged from hospital.  He rode in a
wheelchair to the hospital exit and got into Mr. Johnson’s van for the drive to
Ms. Chandler’s home.

[149]     The next
day – August 7 – Ms. Boyar drove to Ms. Chandler’s home in the morning and
visited there with Mr. Boyar.  Ms. Chandler and Mr. Johnson were also present. 
Ms. Chandler and Mr. Johnson prepared lunch and the four of them ate lunch
together.

[150]     Ms. Boyar
testified that after lunch Mr. Boyar went downstairs to his bedroom  and came
back upstairs with the Will and Power of Attorney for Personal Care documents
she had given him on August 5.  She said he read the Will again, signed it and
passed it to Ms. Chandler and to Mr. Johnson to sign as witnesses.  He signed
the Power of Attorney for Personal Care and Ms. Chandler and Mr. Johnson signed
that document as witnesses also.  A copy of the signed Will and the signed
Power of Attorney for Personal Care are in evidence.

[151]     Ms. Boyar
testified that while this was happening, Ms. Chandler talked about her father’s
death and the probate of his estate and said that Mr. Boyar should put Ms.
Boyar’s name on his house and on his bank accounts.  Ms. Boyar testified that
after the documents were signed, the four of them spent the afternoon sitting
and talking.  She stayed until just before supper time and then went to her
hotel.  She returned to Ms. Chandler’s home the next day – August 8.  She said
Ms. Chandler was at work but Mr. Johnson was home.  Mr. Boyar showed Ms. Boyar the
room he was using in the basement of the home.  Ms. Boyar flew back to Toronto
that evening.  She spoke to Mr. Boyar on the telephone regularly after that
visit but they did not discuss the Will.

[152]     Significant
portions of Ms. Chandler’s testimony about the events surrounding the signing
of the Will were different from that of Ms. Boyar.

[153]     Ms.
Chandler testified that she knew that Ms. Boyar was preparing a Will for Mr.
Boyar.  She testified that Mr. Boyar told her Ms. Boyar was going to e-mail the
Will to him but that Ms. Boyar thought Ms. Chandler might try to change the Will,
so she decided to mail it instead.  It initially got mislaid at the hospital,
Ms. Chandler testified, but then showed up a few days later.  Ms. Chandler felt
that Ms. Boyar was accusing her of hiding the Will and she was quite indignant,
both at the time, apparently, and certainly when she testified about it in court. 
When the mailed documents turned up, Ms. Chandler told Mr. Boyar that Ms. Boyar
owed her an apology.

[154]     Ms.
Chandler recalled that Mr. Boyar had the Will in his possession for quite a few
days before he signed it, but she did not see him read it.  Ms. Chandler
recalled that she put the envelope containing the Will in the nightstand in Mr.
Boyar’s bedroom when he came home from hospital.  Throughout her testimony, Ms.
Chandler made no mention of the Power of Attorney for Personal Care document.

[155]     Ms. Chandler
testified that on the day the Will was signed she had been at work and when she
came home, Ms. Boyar, Mr. Johnson, and Mr. Boyar were all at the house.  She
said she made some tea and it was getting close to dinner time.  Ms. Chandler
could not recall how many days had passed since Mr. Boyar had been discharged
from hospital.

[156]     Ms.
Chandler first testified that she went down to Mr. Boyar’s room and brought the
Will upstairs.  She could not recall if Mr. Boyar or Ms. Boyar had asked her to
get it.  She later testified that perhaps it was Mr. Johnson who brought the Will
upstairs.  She could not recall who took the Will out of the envelope.  Ms.
Chandler testified that she asked Mr. Boyar “Is this what you want?” and he
said “Just fucking sign it so we can get rid of her and I’ll fix it later”. 
She testified that Ms. Boyar made a speech about how much it had cost her to
come to Vancouver.  She testified that Ms. Boyar stood over Mr. Boyar and said
“You sign this.  I spent all this money and you owe me” and words to that
effect.  She testified that Mr. Boyar signed the Will and Ms. Chandler and Mr.
Johnson were told to just flip to the back of the document and sign it.  She
said that Ms. Boyar said “Thank you Steve” and then turned around and
immediately left the house without saying goodbye.

[157]     Ms.
Chandler testified that Mr. Boyar was pretty sulky and he went downstairs, and
later she went down and he was “bawling” and talking on the phone.  She asked
if he was okay and he said he was and that he would talk to her in a while.  He
came up later on and he was upset, but Ms. Chandler could not recall what he
said.

[158]     I do not
believe most of Ms. Chandler’s testimony about the circumstances of the signing
of the Will.  Her version of events is inherently improbable.  She made no
mention of the signing of the Power of Attorney for Personal Care, although her
signature also appears as witness on that document.  I do not believe that she
and Mr. Johnson would have stood idly by if Ms. Boyar was bullying or
haranguing Mr. Boyar.  She could have asked Ms. Boyar to leave the house. 
She knew that there was nothing Ms. Boyar could do to compel Mr. Boyar to sign
a Will; and that Ms. Boyar could not compel Ms. Chandler or Mr. Johnson to act
as witnesses.  Ms. Chandler knew that Ms. Boyar would be returning to
Toronto very soon.  I do not believe Ms. Chandler would have signed as a
witness if she really believed Mr. Boyar did not know what he was doing,
or was being coerced into signing the document.  All Ms. Chandler had to do to
protect Mr. Boyar – if she had really thought he was doing something he did not
want to do – was refuse to be a witness.

[159]     Steve
Johnson’s recollection of events was not completely consistent with that of Ms.
Boyar or Ms. Chandler, but it certainly was inconsistent with much of Ms. Chandler’s
version of events.  Like Ms. Boyar, he recalled that Joanne Boyar was already
at the hospital visiting with Mr. Boyar when he and Ms. Chandler arrived at
hospital on the first day of Ms. Boyar’s visit.  Like Ms. Boyar, he recalled
that Mr. Boyar was discharged from hospital at about 6:00 p.m. that day.

[160]     Like Ms. Boyar,
Mr. Johnson recalled that Ms. Chandler, Mr. Boyar and he were all present the
next day when Ms. Boyar came to the house in Delta.  He recalled that the four
of them ate brunch together.  He said that he had earlier heard that there was
a Will and something about it having been lost in the mail.  He said that they
were all in the living room when a Will was brought out from somewhere and he
signed it as a witness.  He recalled that Ms. Chandler asked Mr. Boyar “Is this
what you want?” and that Mr. Boyar had replied “Just sign it” or “Get it
over with”.  He did not recall Ms. Boyar saying anything to Mr. Boyar before
the Will was signed.  He said there was no discussion about the Will after it
was signed.  He recalled that a short time later, Ms. Boyar had to leave, but
he did not recall her running out the door as Ms. Chandler testified she
had.  He recalled that Ms. Boyar stayed for a while after the Will was signed.

[161]     Mr.
Johnson testified that he thought Mr. Boyar was probably having some pain from
his surgery and was likely taking medication for the pain but said that Mr. Boyar
was coherent and was participating in the conversation and aware of what was
going on around him.

[162]     Mr.
Johnson did not recall Ms. Boyar returning to the house the following day, but
agreed in cross examination that it was possible she had done so.

[163]     By this
time, Mr. Johnson and Mr. Boyar had become friends.  I do not believe that Mr.
Johnson would have signed the Will as a witness if he believed that Mr. Boyar
was being coerced into doing something he did not want to do; or that Mr. Boyar
lacked the mental capacity to understand what he was doing.

[164]     I believe
and accept Ms. Boyar’s testimony about the circumstances of the preparation and
signing of the Will.  I do not believe or accept Ms. Chandler’s testimony that
Ms. Boyar pressured Mr. Boyar to sign the documents.

[165]     I also do
not believe that Ms. Chandler went downstairs later on the day that Mr. Boyar
signed the documents and found him crying while talking on the telephone.  Ms.
Chandler testified that it was on August 7, 2010 – the afternoon of the day
after he was discharged from hospital, and after he had signed the Will, that
she found him crying while talking on the telephone.

[166]     Mr.
Foulston testified that Mr. Boyar called him on the morning of the day after he
was discharged from hospital, but before he had signed the Will.  Mr. Foulston
initially testified that it was either the day after Mr. Boyar had left
hospital or two days after he had left hospital.  Later in his testimony, he
said he was quite certain it was the morning of the day after Mr. Boyar got out
of the hospital that this telephone call took place.  He testified that Mr.
Boyar was crying and sobbing and complaining that Joanne Boyar was pressuring
him to sign a Will.  Mr. Foulston testified that in this telephone conversation,
Mr. Boyar said his sister was haranguing him and screaming at him and phoning
him non-stop and she had spent all her money travelling to Vancouver and she
was demanding that he sign the papers she had brought with her.

[167]     I do not
find this testimony at all convincing.  There is no evidence that Ms. Boyar
phoned Mr. Boyar after she arrived in Vancouver or after Mr. Boyar was
discharged from hospital.  Ms. Chandler and Mr. Johnson were present when Ms. Boyar
visited Mr. Boyar at hospital and neither of them testified that Ms. Boyar was
haranguing Mr. Boyar or screaming at him during her visits.

[168]     I also do
not believe that Mr. Foulston would have done nothing in response to such a
communication from Mr. Boyar, if it had happened.  At the very least, he would
have telephoned Ms. Chandler, or asked to speak to Ms. Boyar herself.

[169]     Mr. Boyar
stayed at Ms. Chandler’s home until December 17, 2010 after which he returned
to his home in Fort St. James.  While he was in the lower mainland, he and Mr.
Johnson went out together a couple of times a week to socialize.  They
regularly went to a pub to watch NFL football games on Monday nights.  Mr. Johnson
drove Mr. Boyar to Costco and other locations for shopping, and to medical
appointments.

[170]     Mr.
Johnson testified that Mr. Boyar and Ms. Chandler did not share a bedroom
during the time Mr. Boyar was living in the home in Ladner following his rectal
cancer surgery.  He said that he still regarded them as a couple, however, and
that they were affectionate towards each other.

[171]      Nine days
after the Will was signed, Mr. Boyar travelled with Mr. Johnson, Ms. Chandler
and Ms. Chandler’s daughter, Sarah, to a Chandler family reunion in the
interior of British Columbia.  Mr. Johnson drove.  This trip turned out to be a
bad idea for Mr. Boyar – his stitches tore, and a drainage tube broke and he
needed medical attention.   The group stayed at a hotel in Enderby, B.C.  Mr.
Boyar had his own hotel room; Mr. Johnson, Ms. Chandler and Sarah Chandler
shared a second hotel room.

[172]     Ms.
Chandler testified that while they were in the area, she went to see the lawyer
who was handling her father’s estate and Mr. Boyar went with her.   Ms. Chandler
said she and Mr. Boyar discussed having this lawyer prepare a new will for Mr.
Boyar, but that did not happen.

[173]     Ms.
Chandler testified that at some point Mr. Boyar told her he wanted to leave his
house to Ms. Boyar; that Ms. Chandler should get “the money” because she needed
it most, and that “the boys” should get “the toys”.  Ms. Chandler was not sure
who Mr. Boyar meant as “the boys” – she thought probably Mr. Foulston and Mr.
Lukey, and possibly one other person.

[174]     Ms.
Chandler testified that after August 7, Mr. Boyar was never well enough to have
a new will prepared, but this is incorrect.  In addition to the trip to Enderby
only nine days after the Will was signed, Mr. Boyar’s Visa bills indicate that
in August, September, October and November 2010 he was getting out and about
frequently – shopping at Costco, Walmart, Safeway, Canadian Tire, Save on
Foods, Ultimate Pet, Pets R Us, service stations, liquor stores, restaurants
and pubs.   I have already referred to Mr. Johnson’s testimony about football
games and visits to the pub.

[175]     Ms.
Chandler testified that following his surgery, she assisted Mr. Boyar with his
colostomy – helping him to prepare and change his colostomy bags.

[176]     Ms. Boyar
and Mr. Boyar kept in touch after her visit to Vancouver.  Ms. Boyar was
concerned about the amount of pain Mr. Boyar was reporting to her.  On
September 12, 2010, she wrote to the doctor who had performed the rectal
surgery – Dr. Frimer – whom she had met during her visit to Richmond Hospital
in August.  She told Dr. Frimer that Mr. Boyar was reporting that he was having
a lot of pain and that occasional interruptions in his oxycontin prescriptions
were especially problematic.  She mentioned that Mr. Boyar had an appointment
with Dr. Frimer on September 16, and asked him to consider better pain
management and also whether anything could be done about lingering symptoms
from the accident injuries.  Ms. Boyar said that Mr. Boyar reported back that
Dr. Frimer had received the letter and had been very sympathetic and the
situation with his medication had improved.

[177]     On
December 17, 2010, Mr. Lukey came to the Lower Mainland and Mr. Johnson
and Mr. Lukey helped Mr. Boyar load all of his possessions from the Delta house
into his truck for the return to Fort St. James.  Mr. Boyar had purchased a
number of new tools with which he intended to stock the workshop at his Fort
St. James property.  Mr. Lukey testified that Mr. Boyar looked well – better
than he had ever seen him; that he had put on weight and his skin looked good.

[178]     After
returning to Fort St. James, Mr. Lukey continued to provide Mr. Boyar with
assistance, driving him into Prince George for medical appointments and taking
him shopping for groceries and other supplies.  Mr. Lukey testified that Mr.
Boyar did talk about having a will prepared and once they actually drove to Mr.
Gilson’s office in Prince George, but the office was locked.

[179]      After
her return to Toronto, Ms. Boyar kept in touch with her brother by telephone. 
When Mr. Boyar got back to Fort St. James he called Ms. Boyar and asked
her if he could come to Toronto and stay with her.  She invited him to come but
he never made the trip.

[180]     In January
2011, Ms. Boyar spoke to Mr. Boyar often, sometimes twice a day.  He told her
he had gone to Mr. Foulston’s home for Christmas and New Year’s and had left
his dog there.  He said Mr. Foulston was going to bring the dog back to Fort
St. James for him.

[181]     Mr. Lukey
testified that two days before Mr. Boyar died, Mr. Boyar asked Mr. Lukey
to take him to see his doctor in Prince George.  He said that Mr. Boyar seemed
disoriented and a bit confused.  Mr. Lukey drove Mr. Boyar to Prince George and
Mr. Boyar’s doctor gave him another prescription.  The next day Mr. Lukey
visited Mr. Boyar.  Mr. Boyar said he wanted Mr. Lukey to take him back to the
doctor the following day at 9:00 a.m. and Mr. Lukey agreed to do that, but
suggested to Mr. Boyar that he take him to hospital instead.  That evening, Mr. Boyar
called Mr. Lukey.  He sounded emotional and said he was concerned about dying. 
He called Mr. Lukey two or three more times that evening, confirming that Mr.
Lukey would pick him up at 9:00 a.m.

[182]     Ms. Boyar
testified that Mr. Boyar called her around 11:40 p.m. on the evening of January
16, 2011.  He told her he was not feeling well and that if something happened
to him, he wanted her to give his tools to Brandon Lukey.  Ms. Boyar tried
to persuade Mr. Boyar to go to the hospital, but he said no; that Mr. Lukey
was coming over to spend the night and he would go to the hospital in Prince
George the next day.

[183]     Ms. Boyar
called Mr. Boyar back and asked him to give her telephone number to Brandon
Lukey.  Mr. Boyar called Mr. Lukey and gave him Ms. Boyar’s telephone number
and asked Mr. Lukey to call Ms. Boyar if anything happened to him.

[184]     On the
morning of January 17, Ms. Boyar began calling Mr. Boyar, but got no answer. 
She called the hospital in Prince George but they had no record of Mr. Boyar
having been admitted.  She called Dr. Higgins’ office and was told that Mr. Boyar
did not have an appointment for that day.

[185]     Mr. Lukey
testified that he also attempted to reach Mr. Boyar by phone starting at about
8:00 a.m. on January 17.  He knew that Mr. Boyar had been in the habit of
sleeping in the day time, but when he got no answer by around 11:30 a.m. he
went to Mr. Boyar’s house and found Mr. Boyar dead on the floor.

[186]     Mr. Lukey
called his girlfriend and asked her to call an ambulance.  The police also
came.  Mr. Lukey called Mr. Foulston, Ms. Chandler and Ms. Boyar.  Mr. Lukey testified
that Ms. Boyar was very upset when told about her brother’s death – almost
hysterical.  He said that she blamed him for not having taken Mr. Boyar to
hospital.   She later apologized to Mr. Lukey.

[187]      Ms. Boyar
flew to Prince George a few days later to begin to deal with Mr. Boyar’s
estate.  Mr. Foulston and Mr. Lukey both helped her by driving her places.  Mr.
Foulston made an appointment for her with a Prince George lawyer who handled
estate matters.  Ms. Boyar went to Fort St. James with Mr. Lukey to see the
house and to make arrangements for it to be secured until it could be sold. 
She told Mr. Lukey about Mr. Boyar’s gift of the tools.  She also gave him a
leather jacket that Mr. Boyar had been fond of.   On a later trip, she gave him
some other household items that he indicated he could use.

[188]     Ms. Boyar
asked Mr. Foulston if there was anything he wanted of Mr. Boyar’s possessions. 
He told her he wanted Mr. Boyar’s boat, motor and trailer; and his motorcycle. 
Ms. Boyar said those items were too valuable to give away.  She offered to sell
the boat and motorcycle to him.

[189]     Mr.
Foulston asked Ms. Boyar if she was going to have a funeral or a memorial
service for Mr. Boyar.  Ms. Boyar said not at that time, that she might do
something later in Toronto.  Mr. Foulston told her he was going to host a
gathering at his home in remembrance of Mr. Boyar; that Mr. Boyar had been to a
similar event for another friend who had died and liked it.  Mr. Foulston
organized the event – essentially a large party at his home, with a bonfire in
the back yard.  Ms. Chandler and Sarah Chandler flew up to Prince George
to attend the event.  Ms. Boyar was invited to be present.  A few days
later, Mr. Foulston asked Ms. Boyar to pay for the food and other expenses
for the party.

[190]     Mr.
Foulston had Mr. Boyar’s boat at his own recreational property near Fort St.
James.  He wanted Ms. Boyar to pay him to store the boat.  Ms. Boyar arranged
for Mr. Lukey to move the boat into alternative, less expensive, storage.   Mr.
Foulston was upset when he found out the boat had been moved.  Ms. Boyar asked Mr.
Lukey to keep an eye on Mr. Boyar’s home and property until she could return to
clean out the house and get it ready for sale, and they agreed on a fee for his
services.

[191]     Mr.
Foulston had Mr. Boyar’s motorcycle in his garage in Prince George.  Ms. Boyar
asked him for the motorcycle but he refused to give it to, saying that some
other items were blocking access to it.  At time of trial, he continued to retain
the motorcycle in his possession.

[192]     Ms.
Chandler made no attempt to visit the Fort St. James property when she visited
Prince George for the event at Mr. Foulston’s home.   She asked Ms. Boyar for a
ring that she said she had given to Mr. Boyar.  Ms. Boyar gave the ring to Mr.
Foulston to give to Ms. Chandler.  At a later date, after Ms. Boyar had been
back to Fort St. James to prepare the house for sale and had cleared numerous
items out of the house, Mr. Lukey invited Ms. Chandler to take any of the items
she wanted from the storage location where he was keeping the items.

[193]     While Ms.
Boyar was in Prince George following Mr. Boyar’s death, Mr. Foulston did
not tell her that Mr. Boyar owed him money for legal services, or for other
services he had provided to Mr. Boyar.  Ms. Boyar had found very few papers in
Mr. Boyar’s home.  She asked Mr. Foulston if he had any of Mr. Boyar’s papers. 
Mr. Foulston arranged to meet Ms. Boyar at her hotel for lunch and took with
him a large binder and some file folders containing papers relating to Mr.
Boyar.

[194]    
Ms. Boyar testified that Mr. Foulston gave her the binder and the file
folders and that he did not tell her he needed or wanted to have any of the
documents returned to him.  I accept this testimony.  She later looked through
the large binder and found it mostly consisted of medical reports and other
information about the personal injury lawsuit that had been settled in 2009. 
She had no interest in those documents – found them upsetting in fact – and
shredded them.  She kept the documents that she thought would assist her in
administering Mr. Boyar’s estate.

[195]    
Some weeks later, on February 5, 2011, Mr. Foulston sent an e-mail to
Ms. Boyar asking her to send the binder and files back to him.

[196]    
 Ms. Boyar replied indicating that she had destroyed the documents in
the binder that concerned the motorcycle accident and follow-up and that as the
other files were Mr. Boyar’s documents, she saw no reason to return them to
him.  Mr. Foulston sent a very angry reply stating he would ask the court to
draw an adverse inference due to her “…deliberate and self serving destruction
of my evidence”.

[197]    
Ms. Boyar made copies of the documents she had kept and provided them to
Mr. Foulston through her counsel.  During the course of this litigation, the
parties obtained copies of Mr. Elliott’s files.

[198]     Mr.
Foulston and Ms. Fenton, who now reside together, had kept Mr. Boyar’s dog
Jasper at their home while he was in the Lower Mainland for cancer treatment.  Mr.
Foulston and Ms. Fenton decided to keep Jasper permanently after Ms. Boyar
indicated she could not take the dog to Toronto and would have to have the dog
euthanized if she could not find a good home for him.  Ms. Fenton subsequently
wrote to Ms. Boyar asking to be reimbursed for $459.54 for food and grooming
for Jasper during the six months that Jasper had stayed with her while Mr.
Boyar was undergoing cancer treatment.   Ms. Boyar reimbursed Ms. Fenton for
the $459.54 she had requested.

[199]     In early
May 2011, Ms. Boyar, through her solicitor, filed an application in the Quesnel
Registry for the grant of Probate of Mr. Boyar’s Will.   Ms. Boyar and her
counsel were informed by the Registry that the application could not proceed
because on February 24, 2011, Mr. Foulston had filed a caveat in the Prince
George Registry.  Ms. Chandler filed a caveat in the Quesnel Registry on May
27, 2011.  She filed a second caveat on November 25, 2011.

ANALYSIS AND DECISION

Did Mr. Boyar lack testamentary
capacity?

[200]     Mr.
Boyar’s Will was signed by him and his signature was witnessed by Ms. Chandler
and by Mr. Johnson, so the required formalities have been met.  Both Ms.
Chandler and Mr. Foulston allege that Mr. Boyar lacked testamentary capacity on
August 7, 2010 when the Will was signed; and that Ms. Boyar applied undue
pressure and duress in order to procure the Will.

[201]     I am
satisfied, however, that Mr. Boyar understood what he was doing – making a
disposition of his assets that would take effect on his death; that he
understood what assets he owned and what obligations he owed; and that he acted
voluntarily in executing the Will.

[202]     No medical
evidence was led to establish a lack of testamentary capacity.  Mr. Boyar had
been discharged from hospital the day before the Will was signed.  If Mr. Boyar
had demonstrated confusion prior to his discharge, presumably there would be
medical evidence available.  Mr. Boyar visited with Ms. Boyar on the day she
arrived from Toronto and the next day; as well as visiting with “Geoff” and
with Ms. Chandler and Mr. Johnson.  Neither Ms. Chandler nor Mr. Johnson
described any behaviour or statements made by Mr. Boyar that suggest that he was
confused.

[203]     August 7,
2010 was not the first time that Mr. Boyar had turned his mind to the making of
his Will.  The subject had been under discussion for some time.  After Mr.
Boyar received the settlement funds from his personal injury lawsuit, he was encouraged
to make a Will not just by Ms. Boyar, but also by Mr. Foulston and Ms.
Chandler.  Ms. Chandler’s father had recently died and she and her brother were
co-executors, as a result of which the matter of wills and estates was on her
mind.

[204]     According
to Mr. Foulston, he had earlier declined a request from Mr. Boyar to prepare a will
for him.  Ms. Chandler and Ms. Boyar discussed having Mr. Gilson prepare a
will.  Ms. Chandler testified that her daughter’s boyfriend had brought over a
self-help kit so that Mr. Boyar could write his own will, but this was never
done.

[205]     From Ms.
Chandler’s own testimony, as well as that of Ms. Boyar, it is clear that Mr.
Boyar always intended to name Ms. Boyar as a beneficiary, or at least one of
his beneficiaries.  Ms. Chandler testified that Mr. Boyar told her he wanted to
leave his house to Ms. Boyar.  Ms. Chandler advised him to put the house and
his bank account into joint names with Ms. Boyar.

[206]     I accept
Ms. Boyar’s testimony that before going into hospital for surgery, Mr. Boyar
asked her to prepare a will for him and that he told her he wanted her to be
the executor and the sole beneficiary.  There is no suggestion that Mr. Boyar
lacked testamentary capacity when that discussion took place.

[207]     I am not
persuaded that in the circumstances of this case there are “suspicious
circumstances” that cast upon Ms. Boyar the onus to prove testamentary
capacity.  See Bates v. Finley Estate, 2002 CarswellBC 138, BCSC 159 and
Vout v. Hay, [1995] 2 S.C.R. 876.

[208]     Although
both Ms. Chandler and Mr. Foulston pleaded that Mr. Boyar lacked testamentary
capacity on August 7, 2010 because he was recovering from surgery and was
taking medication for pain, the evidence at trial does not support these
allegations.  Mr. Boyar was well enough to have left his bedroom and gone
upstairs to visit with his sister and his friends.  He chatted with Ms. Boyar,
Mr. Johnson and Ms. Chandler and ate lunch with them.  He was taking pain
medication, but the evidence does not establish that he was confused or disoriented
as a result.  The medication oxycontin is specifically referred to in Mr.
Foulston’s pleadings and “narcotics” are referenced in Ms. Chandler’s Response,
but Mr. Boyar had been taking oxycontin for several years and he was also a
habitual user of narcotics, so he was accustomed to these medications.  Mr.
Johnson testified that he believed Mr. Boyar was probably having some pain but
was coherent and able to carry on a conversation.

[209]     I am
satisfied Mr. Boyar knew what his assets were as all of his assets had been
recently acquired.    The evidence does not disclose any significant debts.

[210]     I am
satisfied that Mr. Boyar was aware of his obligations to potential
beneficiaries, or to put it in another way, the claims to which he ought to
have given effect.  Mr. Boyar had no children.  I shall later address the issue
of whether Ms. Chandler was Mr. Boyar’s “spouse” – I conclude that she was
not – but he was aware that she was someone he could consider as a beneficiary
– he was staying in her home.  Mr. Foulston testified that at an earlier date
when Mr. Boyar wished to designate a new beneficiary for one of his pension
plans, Mr. Foulston suggested naming Ms. Chandler.  Mr. Boyar decided to
name his estate as beneficiary instead.

[211]     Mr. Boyar
had had an opportunity to consider the contents of the Will before signing it
on August 7, 2010.  Ms. Boyar had mailed a copy of the Will to the hospital and
according to Ms. Chandler it was initially misplaced, but did turn up.  Ms.
Boyar testified that on August 5 – the first day she visited Mr. Boyar – she
gave him a copy of the Will and the Power of Attorney for Personal Care, and he
read the documents in her presence before asking her to put them in his bag.  The
Will is very short.  Ms. Boyar testified that Mr. Boyar read the document
before he signed it on August 7, 2010.

[212]      I do not
believe that Ms. Chandler had any doubts about Mr. Boyar’s testamentary
capacity on August 7, 2010.  Mr. Boyar’s signature was witnessed by both Ms.
Chandler and Mr. Johnson.  If Ms. Chandler had doubts about Mr. Boyar’s
understanding of the step he was taking, or the content of the documents, she
could have suggested that he not sign the Will.  According to her testimony,
she asked him “Is this what you want?” and he told her to sign, although I am
not persuaded that he used the words she attributed to him.  Ms. Chandler
could have refused to witness Mr. Boyar’s signature and could have prevailed on
Mr. Johnson to refuse also.  She could have told Ms. Boyar to leave her home
and not come back.

[213]     Ms.
Chandler’s testimony that Ms. Boyar yelled at Mr. Boyar and harangued him to
sign the Will was not supported by Mr. Johnson’s testimony and I do not believe
Ms. Chandler’s testimony.  I believe she has reconstructed this scene in her
own mind after the fact.

[214]     Ms. Boyar
had no power over her brother and no ability to compel him to do anything he
did not want to do, and I am satisfied that he was aware of those facts.  He
was in a place he was familiar with, and he was with friends.  He had invited
Ms. Boyar to come to visit him and he asked her to prepare the Will for
him.  Ms. Chandler knew that Mr. Boyar was expecting to receive a Will from Ms.
Boyar – she testified about the Will that was expected to arrive at the
hospital and somehow went astray.  Mr. Boyar knew that his sister would be
returning to Toronto within a day or two.

[215]     I am
satisfied that Mr. Boyar had testamentary capacity and that his signature on
the Will was not obtained through duress or undue influence.

[216]     There is
evidence that after August 7, 2010, Mr. Boyar talked about making a new will
and suggested that if he did so, he would include gifts to Ms. Chandler and
“the boys”, as well as to Ms. Boyar.  Mr. Boyar had both time and opportunity
to make a new Will, but he never did.  The fact that he contemplated making
changes to his Will is not evidence that he lacked testamentary capacity on
August 7, 2010 or that the Will he signed that day did not truly reflect his
wishes at the time.

[217]     Accordingly,
the Will is pronounced in solemn form as valid and in force and Ms. Boyar is
entitled to a grant of Probate of the Will.  The caveats are discharged.

WAS MS. CHANDLER MR.
BOYAR’S SPOUSE?

[218]    
Ms. Chandler alleges that at the time of Mr. Boyar’s death she was his
“spouse” within the definition of that term found in the Wills Variation Act,
the Estate Administration Act and the Family Relations Act.   As
I have concluded that the Will was validly executed; that Mr. Boyar had
testamentary capacity; and that the Will was not procured through duress or
undue influence, Ms. Chandler’s claim proceeds on the basis of the Wills
Variation Act (“the WV Act”).  In section 1 of the WV Act,
“spouse” is defined as follows:

means a person who

(a) is married to another person, or

(b) is living and cohabiting with
another person in a marriage-like relationship … and has lived and cohabited in
that relationship for a period of at least two years.

[219]     Counsel
for Ms. Chandler and for Ms. Boyar provided the Court with a number of authorities
on this issue, including Janus v. Lachocki, 2001 BCSC 1702; Souraya
v. Kinch, 2012 BCSC 1252; Kirkwood v. MacMillan, 2008 BCSC 91;
Mazur v. Berg, 2009 BCSC 1770; Tenorio v. Redman Estate, 2011 BCSC
1403; Takacs and Boucher v. Gallo, 1996 CanLII 6429 (BCCA); L.E. v.
D.J., 2011 BCSC 671; Austin v. Goerz, 2007 BCCA 586;  and Yakiwchuk
v. Oaks, 2003 SKQB 124. I have read these decisions and considered the
application of the principles enunciated in them to the facts of this case.

[220]    
At para. 46 of Justice Huddart’s dissenting Reasons in Takacs v.
Gallo, she set out and expressed approval for the detailed seven-part
analysis derived from Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376
(Ont. Dist. Ct.).  Justice Huddart would have upheld the decision of the trial
judge that Mr. Takacs and Ms. Boucher were “spouses” for the purposes of the Family
Compensation Act, R.S.B.C. 1979, c.  20.  The definition of spouse in
that Act defined spouse as:

…a person who lived with the
deceased as the husband or wife of the deceased for a period of not less than 2
years ending no earlier than one year before the death of the deceased.

[221]     Justice
Newbury, with the concurrence of Chief Justice McEachern, found that the trial
judge had erred in concluding that the couple were “spouses”.  Justice Newbury
affirmed the law in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 265.  She
held that the focus should first be on the intentions of the parties to live as
husband and wife or in a marriage-like relationship.  Both subjective and
objective considerations are relevant.  Financial dependence or
inter-dependence is a factor to be considered.  No one factor is conclusive.

[222]     Justice
Newbury reviewed the history of the relationship between Mr. Takacs and Ms.
Boucher.  She found that the judge had erred in concluding that the two had
lived together for two years, because except for one academic year, they had
lived apart even when in the same city.  They spent their summer vacations
(both were students) in different towns, and did not travel together.  Justice
Newbury held that this evidence was “…consistent with the type of relationship
many couples have while attending school and considering marriage eventually” (para.
57).  She concluded that although the parties were in a relationship and had
plans to marry in future, they had not yet “…formed the subjective intention or
manifested the objective indicators that could support a finding that they had
begun to live as husband and wife…”

[223]    
In J.J.G. v. K.M.A., 2009 BCSC 1056, quoted with approval by
Justice Russell in L.E. v. D.J., cited earlier, Justice Dardi stated:

[37] …the court must examine the
relationship as a whole and consider all the various objective criteria
referred to in the authorities.  The presence or absence of one particular
factor will not be determinative.  The court must recognize that each
relationship is unique and, in applying a flexible approach within the context
of a particular relationship, make a determination as to whether the parties
intended to and were living in a marriage-like relationship.

[224]     Turning
now to the facts of this case, I conclude that at the time of Mr. Boyar’s
death, he and Ms. Chandler were not “cohabiting”.  Mr. Boyar and Ms. Chandler
had lived together in her home for a few weeks before his accident in July
2005.  After his discharge from hospital late in August 2005, Mr. Boyar
convalesced at Ms. Chandler’s home.  He moved out of her home around the
end of January 2006.  For the rest of that year and most of the next, he lived
alone in rented accommodation, but also spent some time in Prince George
visiting Mr. Foulston.

[225]     In
December 2007, Mr. Boyar went to Prince George for Christmas and decided to
stay in Prince George.  He lived in Prince George most of the time in 2008.  He
made two trips to Toronto in 2008, including a visit of several weeks in
February, and two and one-half months between September 16 and December 1.

[226]     The
evidence is not entirely clear, but I conclude that after returning from Toronto
at the beginning of December 2008, Mr. Boyar moved back into Ms. Chandler’s
home for a few months, until he received the settlement funds from his personal
injury lawsuit in April 2009.  By May 2009, Mr. Boyar was back in Prince
George.  He purchased a home in Fort St. James in June 2009 and lived there
continuously until he went to the Lower Mainland for cancer treatment in July
2010.  Ms. Chandler visited Mr. Boyar and stayed with him at the Fort St. James
home on several occasions, but she could not recall if Mr. Boyar had ever
visited her in Delta after he purchased the home in Fort St. James.  She
thought he had perhaps visited her once.

[227]     Mr. Boyar
did not return to reside at Ms. Chandler’s home until July 2010, when he went
to the Lower Mainland for cancer treatment.  This treatment was not available
in Prince George.  Mr. Boyar planned to stay in a hospice but that turned out
to be unsuitable for him, so he stayed at Ms. Chandler’s home.   When the
chemotherapy and radiation treatment ended later in July 2010, he returned to
his home in Fort St. James.  He came back to the Lower Mainland later in July
for surgery and remained there until December 2010 when he packed up all of his
belongings and went back to Fort St. James.  He stayed in Fort St. James until
his death on January 17, 2011.

[228]     Although Mr.
Boyar and Ms. Chandler may have shared a home for a period approximating 24
months during the seven years that they knew each other, the cohabitation was
intermittent and the longest periods of cohabitation were at times that Mr.
Boyar was recovering from his accident injuries, and undergoing and recovering
from cancer treatment.

[229]     There are
cases in which parties were found to be “spouses” despite the fact that they were
not living in the same residence for some periods of time, either because one
of the spouses was employed elsewhere or attending school.  In this case,
however, there was no necessity for Mr. Boyar and Ms. Chandler to live apart. 
It is true that Ms. Chandler could not live in Fort St. James and maintain her
employment with B.C. Ferry Corporation.  There was no impediment, however, to
Mr. Boyar living in the Lower Mainland with Ms. Chandler.  Mr. Boyar moved out
of Ms. Chandler’s home at the end of January 2006 by choice, even though he
continued to reside in the Lower Mainland for more than a year after that point.

[230]     Most
significantly, when Mr. Boyar received the settlement funds from his personal
injury lawsuit, he did not, as he could have, purchase a home in the Lower
Mainland or return to the Lower Mainland to reside with, or at least be close
to Ms. Chandler.  He chose to purchase a property in Fort St. James – a
very considerable distance from Ms. Chandler’s home.  He was not employed there
and had no reason to live there alone except that he wished to do so.

[231]     It is
significant to note that Mr. Boyar chose to register the title to his property
in his name alone.  There is evidence that Ms. Chandler helped to choose some
furnishings and decorations for the home, and Mr. Lukey testified that he heard
Mr. Boyar invite Ms. Chandler to come and live there, but I am satisfied
that Mr. Boyar and Ms. Chandler were content to live essentially separate
lives, although they continued to spend time together when Ms. Chandler came
for visits to Fort St. James.

[232]     Mr. Boyar
took vacations without Ms. Chandler.  He went on a motorcycle trip to Vancouver
Island with Mr. Foulston.  He took two trips to Mexico unaccompanied by Ms.
Chandler.  He made two trips to Toronto to visit his mother and sister, but Ms. Chandler
did not accompany him on those visits either.

[233]     There is
evidence that in the early stages of their relationship, Mr. Boyar told friends
he was going to marry Ms. Chandler (this was while he was still living in
McLeese Lake in 2004) and Ms. Chandler testified that he had, on occasion,
asked her to marry him.   I am satisfied however that although marriage may
have been casually contemplated early on, as the relationship evolved neither
party viewed marriage as a likely prospect.

[234]     Sexual
intimacy between Mr. Boyar and Ms. Chandler ended in July 2005, after Mr.
Boyar’s motorcycle accident.  Ms. Chandler testified that Mr. Boyar was
impotent, but did not testify that sexual acts of other kinds continued between
them.  It is clear that she and Mr. Boyar did occasionally share a bed and
continued to be affectionate with each other – kissing, holding hands and
hugging – but it does not appear that their relationship continued to include
sexual activity that would be expected in a spousal relationship.

[235]     Mr. Boyar
gave Ms. Chandler money to pay for her trips to visit him in McLeese Lake early
in their relationship.   Ms. Chandler gave Mr. Boyar some money when he
relocated to Alberta early on in their relationship.  He got her a secondary
credit card for Canadian Tire and gave her a credit card to use when she was
visiting her father when he was ill and she had no money for decent
accommodation.  During periods of time that Mr. Boyar lived in Ms. Chandler’s
home, he contributed to the household expenses – purchasing food and alcohol.

[236]     I do not
consider these few instances, however, to show that the parties were
financially dependent on each other, or that they were financially
interdependent.

[237]     They had
no joint bank accounts.  Mr. Boyar was not a party to the lease on Ms.
Chandler’s home.  I have already said that he purchased the Fort St. James
property in his name alone, as well as the boat and motorcycle that he
purchased.  He bought a new truck early in 2009 and registered that in his name
alone.

[238]     Ms.
Chandler did arrange for Mr. Boyar to be a beneficiary of her medical plan
through her employment and claimed him as her “spouse”.  She explained her
reason for doing so, however, which was that after Mr. Boyar settled with ICBC,
his medical expenses, including prescriptions were no longer covered and this
was a method by which she could help him out.

[239]     There are
one or two hospital documents on which Ms. Chandler is listed as “next of
kin”.  It is not clear that either Ms. Chandler or Mr. Boyar provided that
information.  It may have been assumed.  On other hospital documents, Ms. Boyar
is listed as Mr. Boyar’s next of kin.  Mr. Boyar designated Ms. Boyar as the
person he wanted to make decisions for him about medical care in the Power of
Attorney for Personal Care document.

[240]     Sarah
Chandler testified that Mr. Boyar had been more of a father to her than her own
father, but other than helping to pay for her high school graduation gown, and
occasional gifts, the evidence does not indicate that Mr. Boyar assumed
financial responsibility for Sarah Chandler or considered himself to be her
step-father.

[241]     Mr.
Foulston testified that Mr. Boyar referred to Ms. Chandler as “my old lady”, a
phrase that Mr. Foulston says connotes a spouse in motorcycle circles.  I am
not persuaded that it is not a term also used to describe a girlfriend.  Mr.
Boyar used the term to describe Brenda Fenton (he said she was Mr. Foulston’s
“old lady”) at a time she and Mr. Foulston were not living together.

[242]     Ms.
Chandler certainly provided care for Mr. Boyar that one would associate with
the type of care a spouse would provide.  She assisted Mr. Boyar both in the
months after he was discharged from hospital following his motorcycle accident,
and after he had surgery for rectal cancer.  The care she provided included
assisting Mr. Boyar with toileting and bathing; and with his colostomy.

[243]     Earlier in
these Reasons, I set out passages from the Mediation Brief prepared by Mr.
Boyar’s counsel in 2009 in which, on behalf of Mr. Boyar, his counsel asserted
that Mr. Boyar’s relationship with Ms. Chandler had fundamentally changed
following his motorcycle accident; that Mr. Boyar had no spouse; and that he
was unlikely to ever have a spouse.  That document is inconsistent with the
proposition that Mr. Boyar regarded himself as being in a marriage-like
relationship with Ms. Chandler.

[244]     Both Mr.
Boyar and Ms. Chandler claimed to be “single” on their income tax returns
during the relevant period.  Even more significantly, Mr. Boyar expressly
denied having a spouse on several applications he made for Canada Pension Plan
benefits and the payout of two employment pensions.  Ms. Chandler actually
filled out the application form for Mr. Boyar when he applied for Canada
Pension Plan Disability benefits in August 2006 and checked the box for
“single” as a description of his marital status, although “common-law” was an
available choice.  She also witnessed Mr. Boyar’s signature on a Declaration of
Marital Status Form in November 2009 on which he declared that he had no
spouse.  Mr. Boyar denied having a spouse in other applications and forms
witnessed by Mr. Foulston and a friend – Barbara Dyer.

[245]     Mr. Boyar
told Ms. Chandler during a visit to Toronto that when he died he wanted his
ashes to be placed with his father’s in Toronto and in furtherance of that
desire, he asked her to order a memorial plaque for him.  He expressed no
desire to be buried or to have his ashes interred near Ms. Chandler.

[246]     Ms.
Chandler’s conduct in relation to the signing of Mr. Boyar’s Will, as well as
her behaviour after his death, are also inconsistent with a belief on her part
that she was Mr. Boyar’s “spouse”.  It is clear that at the time she did not
consider herself to be entitled to share, as a spouse would, in the
distribution of Mr. Boyar’s assets.  She may have hoped or even expected that
he would include a gift to her in his Will, but she did not demonstrate the
sense of entitlement one would expect of a spouse.  Ms. Chandler even suggested
to Mr. Boyar that he should put his house and his bank account in joint names
with Ms. Boyar.  She did not tell Mr. Boyar that he had an obligation to
provide for her in the event of his death.  After he died, she did not step
forward and ask to be consulted about his funeral arrangements.

[247]     Having considered
both the evidence of Mr. Boyar’s and Ms. Chandler’s intentions; and the
objective evidence, I conclude that they were not “spouses” within the
definition found in the WV Act.  Ms. Chandler is not a person entitled
to bring a claim under the Wills Variation Act and that part of her
claim is dismissed.

IS MS. CHANDLER ENTITLED TO AN AWARD FOR UNJUST
ENRICHMENT?

[248]     In her
Counterclaim, Ms. Chandler has pleaded that Mr. Boyar was unjustly enriched by
services she provided to him following the motorcycle accident and during the
time he was receiving treatment and recuperating from surgery for rectal
cancer.

[249]     A portion
of Ms. Chandler’s claim for unjust enrichment relates to her allegation that
she took time off from her job with B.C. Ferry Corporation to care for Mr.
Boyar and lost pension credits as a result.  I have already said that Ms.
Chandler testified that she took some time on the recommendation of a human
resources supervisor (and Mr. Boyar referred to this in his evidence on
Discovery) but the documents provided do not prove either a loss of income or
pension credits directly corresponding with the time that Mr. Boyar was
recovering from his injuries or undergoing cancer treatment.

[250]     Ms.
Chandler also claimed to have unjustly enriched Mr. Boyar by improvements she
made to Mr. Boyar’s home in Fort St. James.  The evidence does not establish,
however, that she did work for which Mr. Boyar would otherwise have had to pay,
or that the tasks Ms. Chandler performed increased the value of Mr. Boyar’s
home.  I accept that when Ms. Chandler visited Mr. Boyar in Fort St. James
she purchased some decorative items for the home, but I conclude that it is
more probable than not that Mr. Boyar paid for the purchases.  Mr. Lukey
testified that Ms. Chandler cleaned and neatened the home when she visited, and
I accept that testimony also.  She liked to garden and she planted some flowers
and did some work in the yard, but I am not persuaded that the work she did was
major.  She was a house-guest enjoying hospitality and repaying it by helping
out.

[251]     However,
the personal care services Ms. Chandler provided to Mr. Boyar after he was
discharged from hospital following his motorcycle accident, and in 2010 when he
was receiving cancer treatment and recovering from surgery, did, in my view,
enrich Mr. Boyar.

[252]     Mr. Boyar
did receive assistance in Ms. Chandler’s home that was professional and paid
for by his insurer.  He had home nursing care to change his dressings and look
after his wounds.  Some homemaker assistance was also provided to help with
personal care, cooking, cleaning and laundry.  But Ms. Chandler also
provided Mr. Boyar with care – helping him to stand to use the toilet, helping
him to bathe, purchasing items he needed, including clothing, filling
prescriptions, getting groceries, making meals, cleaning and helping to keep
him comfortable.  Ms. Chandler allowed Mr. Boyar to live in her home and occupy
her living room as a bedroom.  I accept that Mr. Boyar contributed to the
household finances, but the evidence does not establish that he paid rent, or
that he paid Ms. Chandler for her services.

[253]     Had Ms.
Chandler not taken Mr. Boyar into her home and provided the care she did, I
conclude that Mr. Boyar would probably have required more paid homecare
assistance, although he likely could not have afforded to pay for it if his
insurer had refused to cover the cost.  Even after Mr. Boyar moved into his own
residence on the Tsawwassen reserve, Ms. Chandler continued to assist him with
cleaning and yard work.

[254]     Mr. Boyar
acknowledged the value of Ms. Chandler’s contributions when he advanced an “in
trust” claim in respect of her services as part of his claim for damages in his
personal injury lawsuit.

[255]    
In the Mediation Brief prepared by Mr. Elliott in June 2008, he advanced
a claim on behalf of Mr. Boyar for $1.5 million.  Forty thousand dollars of
that amount was advanced as an “in trust” claim for “Dolly”.  The Brief
described her contributions as follows:

Dolly helped Mr. Boyar to move
into a rented trailer on Tsawwassen Indian Band land.  She continued to help
Mr. Boyar on a daily basis by coming to his home almost every day and assisting
in cleaning, cooking, taking him to his various medical appointments.  She also
did his yard work.  She took him shopping for groceries and ran his errands. 
She also spent a lot of time filling out forms required by ICBC and his
disability insurer and making phone calls.

Despite
receiving home care assistance of 2 hours a day, which consisted mainly of
light housecleaning and some meal preparation, Mr. Boyar required around the
clock care and Dolly was responsible for all Mr. Boyar’s needs from the day he
came home from the hospital until he moved to Prince George in approximately
January of 2008.  According to the Service Canada Labour Market Information,
the average hourly rate for visiting homemakers/housekeepers is $15.09 per
hour.  Dolly says she spent between 2 to 5 hours a day caring for Mr. Boyar. 
Taking into consideration the minimal assistance provided by ICBC for
approximately 6 months, we use an average of 3 hours a day for the period of
August 5, 2005 to January 1, 2008, being 879 days X 3 hours per day@ $15.09 for
a total of $39,792.33.  Even since his move to Prince George, when Mr. Boyer
comes to Vancouver to attend various doctors’ appointments she continues to
pick him up from the airport, care for him and take him to his appointments.

[256]     I
recognize, of course, that a Mediation Brief is a form of submission or legal
argument, and is not evidence; and that neither Mr. Elliott nor Mr. Boyar may
have expected to recover the amount claimed at a trial, or as part of a
settlement of his claim.  Some of the assertions in the Brief have been
disproved by evidence at this trial.  I have concluded, for example, that Ms.
Chandler was not “…responsible for all Mr. Boyar’s needs” from August 2005
until January of 2008.

[257]     No
evidence about hourly rates for homemakers was led at this trial.   Ultimately,
Mr. Boyar did not recover $1.5 million.  Mr. Foulston’s testimony indicates Mr.
Boyar’s claim was settled for $865,000 and that Mr. Elliott’s legal fees and
disbursements significantly reduced the amount that Mr. Boyar recovered.  There
is no evidence about the breakdown of the ultimate settlement figure or whether
it included an “in trust” award related to services provided by Ms. Chandler.

[258]     At his
examination for discovery in the personal injury action on May 13, 2008, Mr.
Boyar testified about the care and support Ms. Chandler had provided for him
following the motor vehicle accident; both while he was living in her home and
after he moved to his own home on the Tsawwassen reserve.

[259]     I am
satisfied that Ms. Chandler’s contributions had value and that but for her care
and support, Mr. Boyar might have had to pay for homecare assistance, or would
have not have recovered from his injuries as quickly as he did.  I am satisfied
that Ms. Chandler assisted Mr. Boyar to her detriment.  Although the evidence
about loss of wages or pension credits is unsatisfactory, I am satisfied that
Ms. Chandler probably did take some time off work because of the stress of
caring for Mr. Boyar.  In any event, she gave up time that she could have
devoted to other, more pleasurable activities.  There is, in my view, no
juristic reason for the enrichment.   Ms. Chandler and Mr. Boyar had been
living together only a very short time and they were not spouses.

[260]     In
addition to the services described in the Mediation Brief, Ms. Chandler again
opened her home to Mr. Boyar in 2010 when he was in the Lower Mainland for
radiation and chemotherapy; and after his surgery.  She described the very
personal type of care she provided for him in her home.  As she indicated in
her testimony, it would be rare for a friend to provide the kind of care she
provided.  I am satisfied that if she had not been willing to take Mr. Boyar
into her home, he would have had to remain in hospital longer; or go to a care
facility for which he would have incurred cost.

[261]     In her
closing submissions, counsel for Ms. Chandler submitted that an award of
$40,000 should be made for services provided by Ms. Chandler following the
motorcycle accident; and $30,000 for services provided in 2010 during the time
Mr. Boyar was receiving treatment for cancer.

[262]     I am not
persuaded that the services provided warrant an award of that magnitude absent
evidence establishing an actual loss of income or pension credits.  Ms.
Chandler did receive some compensation from Mr. Boyar in return for her
contributions.  She testified about gifts of clothing and jewellery he
purchased for her.  He did make financial contributions to the household during
the time he lived in Ms. Chandler’s home.  He gave her money for trips to
McLeese Lake and to visit him in Alberta.  He gave her a credit card to pay for
her expenses when she was visiting her father when he was ill.  He took her on
outings and purchased food and alcohol.  Ms. Boyar testified that Mr. Boyar
told her that $15,000 of his savings had been spent while he was staying with
Ms. Chandler following the motor vehicle accident.

[263]     I award
Ms. Chandler the sum of $40,000 as compensation for unjust enrichment.

MR. FOULSTON’S CLAIM FOR COMPENSATION

[264]     Mr. Foulston
did not file his Counterclaim in this action until July 3, 2012, only six weeks
prior to the first scheduled trial date of August 12, 2012.  The Counterclaim
is pleaded in an unusual manner and the claims pursued at trial are not
entirely consistent with the pleadings.

[265]     In closing
submissions, counsel for Mr. Foulston stated that Mr. Foulston is seeking an
award of $200,000.  The claim is advanced on a variety of bases – that Mr. Foulston
provided legal services to Mr. Boyar for which he should be paid as a lawyer;
that as a lawyer, Mr. Foulston “recovered” property for Mr. Boyar, namely Mr.
Boyar’s settlement funds from ICBC; and that Mr. Foulston provided a variety of
other services to Mr. Boyar including cooking meals, helping Mr. Boyar to keep
track of appointments, assisting Mr. Boyar to find a property to purchase at
Fort St. James, and helping Mr. Boyar to refrain from the consumption of drugs
and alcohol.

[266]    
Mr. Foulston is also advancing a specific claim for title to Mr. Boyar’s
boat, motor and trailer and Mr. Boyar’s motorcycle.  As I stated at the outset
of these Reasons, the legal basis for the claim to these specific assets is not
pleaded.  There are references to these chattels in the Counterclaim.  In the
Counterclaim, Mr. Foulston refers to himself as “RAF” and to Mr. Boyar as
“BB”.  In relation to the boat, Mr. Foulston has alleged:

30. 
BB put RAF on the boat insurance gave RAF a key and said it was their boat and
RAF could use it anytime and if anything happened to BB the boat was RAFs.

[267]    
In relation to the motorcycle, the Counterclaim makes reference to that
chattel in two paragraphs, as follows:

35.  In May of 2010 BB asked
RAF to go get a motorcycle he had purchased and store it in my shop.  I did.

37. 
BB was thrilled when he saw that I had his bike in my shop in PG and told me to
keep it there and if anything happen to him it was mine.

I have interpreted these paragraphs to be allegations of
some sort of oral testamentary gift.

[268]     I begin by
disposing of the claims to the boat, boat motor, boat trailer and motorcycle.  Mr.
Foulston has not persuaded me that Mr. Boyar made a gift of these items to him
during his lifetime.  When Mr. Boyar purchased these chattels in 2009, many
months before he was diagnosed with cancer, he registered them in his name
alone.  He named Mr. Foulston as an “operator” of the boat when he purchased
insurance for it, but that does not indicate that Mr. Foulston was or was
intended to be an owner of the boat.

[269]     The
evidence also does not establish that there was a contract or a legally binding
promise on the part of Mr. Boyar to leave these chattels to Mr. Foulston in a testamentary
instrument.  Mr. Foulston provided no consideration capable of founding a
bargain.  He did not agree to do anything in return for a promise to leave him
these chattels.   In my view, the remarks attributed to Mr. Boyar, if in fact
Mr. Boyar made the remarks, were no more than gratuitous comments not
intended to have legal effect.

[270]     Mr. Boyar
made his Will in August 2007, more than a year after the comments were made on
which Mr. Foulston relies.  Mr. Boyar did not include a gift of the chattels to
Mr. Foulston. He left all of his property “of every nature and kind and
wheresoever situate” to Ms. Boyar.

[271]     According
to Ms. Chandler, Mr. Boyar talked about making a Will in which he would leave
“the toys” to “the boys”, but he did not tell her that he had promised the
boat, motor, trailer and motorcycle to Mr. Foulston.

[272]     The night
before he died, Mr. Boyar told Ms. Boyar that in the event of his death he
wanted Brandon Lukey to have his tools.  Mr. Boyar had recently purchased a
quantity of new tools, so that was not an inconsequential request.  Ms. Boyar
honoured that request.  Mr. Boyar did not tell her he had promised to give the
boat, motor, trailer or motorcycle to Mr. Foulston, or that he wanted Mr.
Foulston to have these items.  When Ms. Boyar was in Prince George following
Mr. Boyar’s death, she asked Mr. Foulston if there was anything of Mr. Boyar’s
that he would like to have.  He said he would like to have the boat, motor,
trailer and motorcycle.  He did not tell her that he had a legal claim to those
items, or even that Mr. Boyar had promised them to him.  Ms. Boyar testified
that Mr. Foulston told her that Mr. Boyar was going to change his Will and
intended to leave these chattels to Mr. Foulston, but as I have already said,
this did not happen.

[273]      After
Ms. Boyar declined to make a gift of the chattels to Mr. Foulston, he told her
that he would like to buy the boat, motor, trailer and the motorcycle, and
possibly the house in Fort St. James also.

[274]     I find Mr.
Foulston has no right, title or interest in the boat, boat motor, boat trailer
or the motorcycle.  He shall forthwith make the motorcycle available to Ms. Boyar,
her counsel or any person designated by either of them to take possession of
it.  In the event the motorcycle has been damaged or declined in value since
Mr. Foulston declined to surrender it in January 2011, he shall account to the
estate for any loss.  He is not entitled to any fee or charge for storage.

[275]     I turn now
to Mr. Boyar’s claim that he is entitled to remuneration for legal services
provided to Mr. Boyar.

[276]     Although
not clearly pleaded, at trial and in submissions, Mr. Foulston maintained that
he provided legal services to Mr. Boyar in pursuing his claim for damages for
injuries and losses associated with the motorcycle accident, and in connection
with the purchase of Mr. Boyar’s property in Fort St. James.  In other words,
Mr. Foulston submitted that he was acting as a lawyer and Mr. Boyar was his
client.  He gave various estimates of the value of the services he said he had
provided.  He characterized this as a “quantum meruit” claim, but it is
essentially a claim to be paid for legal services.

[277]     This claim
must fail.  I stated earlier in these Reasons that the evidence does not
support the existence of a solicitor-client relationship between Mr. Foulston
and Mr. Boyar.  Mr. Boyar retained first Mr. Daly and then Mr. Elliott to
represent him in his claim against the driver of the vehicle that collided with
his motorcycle.

[278]     Mr.
Foulston did not call Mr. Elliott as a witness at this trial.  I infer that Mr. Foulston
did not call Mr. Elliott as a witness because he knew that Mr. Elliott would
not support Mr. Foulston’s claim that he was in some way acting as co-counsel,
or was also representing Mr. Boyar, and intended to charge Mr. Boyar for legal
services, in relation to the personal injury litigation.  I infer that Mr.
Elliott would not support Mr. Foulston’s claim that until Mr. Foulston became
involved, Mr. Boyar’s claim had stalled and could not have proceeded without
Mr. Foulston’s involvement.

[279]     There is
no retainer agreement.  Mr. Foulston has never delivered a bill for his
services, either to Mr. Boyar or to Mr. Boyar’s estate.  Section 69 of the Legal
Profession Act makes it mandatory for a lawyer to deliver a bill to the person
charged.  A bill is required because the client has a right to have the bill
reviewed.  It may be reviewed at any time before 12 months after the bill was
delivered.  Subsection 6 of s. 69 provides that if a lawyer sues to recover an
amount owing for legal services, the court may refer the bill to the Registrar
to review the bill and either issue a certificate or make a report and
recommendations.

[280]     I brought
these provisions to the attention of Mr. Foulston and his counsel during the
trial.  No bill was ever tendered.

[281]     In
submissions, although the claim was never pleaded, Mr. Foulston sought to rely
on s. 79 of the Legal Professions Act.  Section 79(1) provides that a
lawyer who is retained to prosecute a proceeding in a court has a charge
against any property that is recovered or preserved as a result of the
proceeding.  Mr. Foulston claims that it was due to his efforts that Mr. Boyar
was able to achieve the settlement with ICBC and that he therefore has a charge
against the funds ort any assets purchased with the funds.

[282]     Mr.
Elliott was retained to prosecute the proceeding arising from the motorcycle
accident; Mr. Foulston was not.  I accept that Mr. Foulston did provide help
and support to Mr. Boyar when Mr. Boyar was sharing his home in Prince George,
but not that Mr. Foulston was doing so as a lawyer who was retained to
prosecute a proceeding.

[283]     Mr.
Foulston is also claiming compensation for services he claims to have provided
in relation to the purchase by Mr. Boyar of the property in Fort St. James.  Mr.
Boyar retained a solicitor, Mr. Van Delft, to handle the conveyance for him. 
Mr. Foulston testified that he went with Mr. Boyar to look at properties,
but he did not find the property that Mr. Boyar actually purchased.  Mr. Boyar
found that property himself; he saw a brochure advertising the property for
sale.  Mr. Foulston arranged for an appraisal of the property but that is
something Mr. Boyar could have done for himself; or could have had Mr. Van
Delft do.  The actual contract of purchase and sale was completed on a form
provided by Mr. Van Delft.

[284]     I conclude
that Mr. Foulston accompanied Mr. Boyar because he was interested in doing so. 
He wanted Mr. Boyar to purchase property in a location close to his own
recreational property.  The two men were friends and they shared an interest in
boating, fishing, hunting and other outdoor activities.

[285]     Mr.
Foulston has not delivered a bill for legal services in connection with the
purchase of the property.  I am not persuaded that Mr. Foulston suffered
deprivation for his involvement in the search for the property or that Mr.
Boyar was enriched by Mr. Foulston’s efforts.

[286]     I make no
award for services provided by Mr. Foulston in relation to the conduct of the
personal injury lawsuit or the purchase of the Fort St. James property.

[287]     Mr.
Foulston has also advanced a claim for compensation for unjust enrichment in
relation to services that can be characterized as “non-professional”.  In his
closing submissions, he claims to have helped Mr. Boyar overcome “…the deepest
depths of his addiction to drugs and alcohol”.  Mr. Foulston testified that he
helped Mr. Boyar keep track of appointments, including medical appointments,
helped him with the purchase of a bed, pillows and other equipment (the cost of
which was paid by ICBC), helped Mr. Boyar with paperwork, including
applications for pensions; and ensured that Mr. Boyar’s bills were paid. 
Earlier in these Reasons, I quoted from a document Mr. Foulston prepared for
Mr. Elliott in 2008 setting out his description of the services he provided to
Mr. Boyar.

[288]    
In the Mediation Brief prepared by Mr. Elliott, an “in trust” claim of
$10,000 was advanced in relation to services alleged to have been provided by
Mr. Foulston.  The basis of the claim was described in the Brief as follows:

Mr.
Boyar was drinking too much and withdrawing from life, while living in the
trailer.  Rick Foulston stepped in to help.  Mr. Boyar moved back to Prince
George and moved in with Mr. Foulston in approximately January of 2008.  Mr.
Boyar pays Mr. Foulston rent of $500 per month and shares in utilities and food
costs.  Mr. Foulston does far above what would be expected of a landlord. 
He helps Mr. Boyar to keep appointments, does his paper work and helps to keep
him on track on a day-to-day basis.  He cooks meals, takes him on trips and to
many of his appointments.  We assess Mr. Foulston’s in trust claim to be
$10,000.

[289]     At his
examination for discovery in May 2008, Mr. Boyar testified that Mr. Foulston
had “volunteered” to help Mr. Elliott and Mr. Elliott’s secretary with
paperwork.  He testified that Mr. Foulston did all the cooking of meals.  He
said that Mr. Foulston did not do the housecleaning – that Mr. Foulston’s “old
lady” (I infer this is a reference to Mr. Foulston’s partner, Brenda Fenton)
came in to help with the housework, and Mr. Boyar said he also tried to help
with things like sweeping the kitchen floor.

[290]     I accept
that Mr. Foulston did provide valuable assistance to Mr. Boyar by helping him
to respond to Mr. Elliott’s requests for information, by keeping track of Mr.
Boyar’s medical appointments, by assisting Mr. Boyar with the purchase of
equipment, and by assisting Mr. Boyar to fill out the pension application
forms.

[291]     I do not
consider Mr. Foulston to be entitled to compensation for his efforts to
influence Mr. Boyar to moderate his drug and alcohol consumption.  Mr. Foulston
is not a counsellor.  In my view, he did no more than any concerned friend
would do.  In any event, his efforts brought about only limited and temporary
success.

[292]     I have
taken into account the fact that over the years Mr. Boyar also performed
valuable services for Mr. Foulston for which he was not paid.  He did chores
for Mr. Foulston’s mother.  He helped Mr. Foulston move a house from one
location to another and assisted with a major renovation and expansion of the
house.  He drove machinery and cleared brush and trees from Mr. Foulston’s
property.  Even after the motor vehicle accident, and at the cost of some
discomfort, he operated equipment to clear trails on Mr. Foulston’s
recreational property.   He took Mr. Foulston fishing in the boat he purchased
in May 2009 and allowed Mr. Foulston to use the boat after Mr. Foulston’s own
boat sank.

[293]     I have
also considered the fact that during the time that Mr. Boyar lived with Mr. Foulston
he paid rent of $400 a month, although Mr. Foulston was only paying total rent
of $600 a month.  Mr. Boyar also paid his share of the utilities and food.

[294]     Having
considered all of these factors, I award Mr. Foulston $8,000.  All other claims
advanced by Mr. Foulston are dismissed.

COSTS

[295]    
The parties made submissions about costs, but may wish to make further
submissions now that the outcome of the trial is known.  If any party wishes to
make further submissions about costs they may do so, in writing.  The
submissions must be filed no later than April 30, 2014.

“BAKER J.

per 
BURNYEAT J.”